Warder, Bushnell & Glessner Co. v. Jacobs

• Citation: 50 N.E. 97,58 Ohio St. 77
• Parties: WARDER, BUSHNELL & GLESSNER CO. v. JACOBS.
• Decision Date: 01 March 1898
• Court: United States State Supreme Court of Ohio

50 N.E. 97

58 Ohio St. 77

WARDER, BUSHNELL & GLESSNER CO. v. JACOBS.

Supreme Court of Ohio.

March 1, 1898

Error to circuit court, Hardin county.

Action by Treca A. Jacobs against the Warder, Bushnell & Glessner Company. A judgment for plaintiff was affirmed on appeal in the circuit court, and defendant brings error. Affirmed.

Syllabus by the Court

1. It is an established rule of reviewing courts that the error for which a judgment may be reversed must affirmatively appear on the face of the record.

2. Where a record shows that improper remarks were made in his argument to the jury by the attorney of the prevailing party but does not show whether the court reproved the attorney or directed the jury to disregard the remarks, nor is the evidence presented to the court for review, in such case a reviewing court is not warranted in reversing the judgment entered upon the verdict, however improper the remarks may have been. The presumption in such case is that the court performed its duty and that the evidence sustained the verdict.

Johnson & Johnson, for plaintiff in error.

George Jameson, for defendant in error.

MINSHALL, J.

The action below was a suit brought by Treca A. Jacobs against the defendant, Warder, Bushnell & Glessner Company, to recover the possession of certain personal property that had been taken in execution on a judgment that had been rendered in their favor against the husband of the plaintiff, the wife claiming to be the owner of the property. The attorney for the plaintiff, in the course of his argument to the jury as shown by the record, used the following language ‘Gentlemen: The plaintiff is a poor woman. Your verdict against her will mean much, very much; but to the defendants with all their wealth, residing in their magnificent castles in the city of Sprinfield, a verdict against them does not hurt them,’-to which remarks, as the record says, the defendants ‘then and there objected and excepted.’ This is all the record discloses in regard to the matter, other than that, after a verdict for the plaintiff, a motion for a new trial was made on this among other grounds, which was overruled by the court, and judgment rendered on the verdict. A bill of exceptions was taken and made a part of the record, showing the matters above stated. It also contained the evidence given at the trial; but, as nothing is claimed from the evidence, it has been omitted in the printing of the record. The judgment was affirmed on error by the circuit court. The only ground for a reversal relied on in this court is the misconduct of plaintiff's counsel in using the words to the jury above stated.

Certainly these remarks were of the most reprehensible character, and it is a matter of some surprise that counsel should so far forget himself in argument to the jury as to commit such a breach of his privilege as is shown by the words used in this case. No heat of argument nor zeal for his client, can be admitted as a palliation of such an offense against the fair administration of justice. But the question arises whether, upon this record, anything appears from which this court can say there is error in the judgment for which it should be reversed. It is a settled principle of practice in all reviewing courts that the error for which a judgment may be reversed must affirmatively appear on the face of the record. From the record before us it simply appears that these observations were made by counsel for the plaintiff to the jury, and that counsel for the defendant then and there ‘objected and excepted.’ From this we readily infer that counsel ‘objected’ to the remarks of the opposing counsel, as he had an undoubted right to do. But to what did he ‘except.’ An exception is not to the act of a party, but to that of a court in ruling on an objection. What the court did in this matter is not disclosed by the record. The court may at once have reproved the counsel and instructed the jury, in the most positive terms, not to regard the remarks of counsel in arriving at their verdict. To this the defendant could not have excepted, or, if he did, the exception would be unreasonable and of no avail. If the court took no notice of the objection, or overruled it, then the defendant might reasonably have excepted, and such action of the court would have been a clear ground of error, for which the judgment should be reversed. But, inasmuch as the record is silent as to what the court did, we are not permitted to assume that it did what it should not have done. On the contrary, the only presumption we are permitted to make, in such case, is that the court performed its duty in the premises,-reproved the counsel and properly instructed the jury at the time. If he did not, and a review of its action is desired, the party excepting must cause the record to show what the ruling of the court was; otherwise it cannot be said to affirmatively appear that the court committed error.

But it is argued that, the language used being in the nature of misconduct of the prevailing party, no objection or exception was required at the time the offense was committed. Admit this to be true, it does not dispense with the necessity of...