State ex rel. Moffitt v. Zupnik

• Decision Date: 17 November 1943
• Docket Number: 29558.
• Parties: STATE ex rel. MOFFITT v. ZUPNIK et al.
• Court: Ohio Supreme Court

51 N.E.2d 661

142 Ohio St. 232

STATE ex rel. MOFFITT v. ZUPNIK et al.

No. 29558.

Supreme Court of Ohio

November 17, 1943

Appeal from Court of Appeals, Cuyahoga County.

The relator filed a petition for a writ of mandamus in the Court of Appeals, commanding the respondents, as the Board of Trustees of the Police Relief Fund of the city of Cleveland, to place him upon the police relief fund roll at a rate of pension equal to 50 per cent of the salary fixed for the position to which he was detailed and in which he was serving at the time of his retirement.

The journal entry by which the Court of Appeals issued a peremptory writ recites that the 'cause came on to be heard on the petition, the joint answer, a supplemental joint answer, the reply and the evidence, * * *.'

A notice of appeal to this court was filed by respondents, but the record before us does not contain an agreed statement of facts, a finding of facts by the Court of Appeals or a bill of exceptions allowed and signed by that court.

The appellee in this court moved for affirmance of the judgment of the Court of Appeals 'for the reason that the record is incomplete and presents no question which this court can consider.'

Thomas A. Burke, Jr., director of law, and Charles W. White, both of Cleveland, for appellants.

Griswold, Leeper, Miller & Corry, of Cleveland, for appellee.

BY THE COURT.

The legal questions presented by appellants cannot be decided upon the pleadings alone or from the record which is before us.

There being no bill of exceptions in the record, the motion of appellee is sustained and the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

WEYGANDT, C. J., and MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS, and TURNER, JJ., concur.