Opinion
No. 23004
Decided March 2, 1932.
Appeal — Trial de novo — Litigants may submit evidence under rules applicable in trial court — Constitutional right denied by rule limiting evidence to transcript, as supplemented.
1. Litigants in appealed cases have the right to submit their evidence to the appellate court under the same legal rules applicable to trial courts.
2. The requirement, by rule of court, that a litigant in an appealed case shall try his case upon the transcript of the evidence taken in the trial court, supplemented by such oral evidence as the parties may present, does not accord to the litigant his constitutional right to have his case tried de novo in the appellate court. ( Union Trust Co. v. Lessovitz, 122 Ohio St. 406, 171 N.E. 849, approved and followed.)
ERROR to the Court of Appeals of Morrow county.
On or about July 12, 1926, the village council of the village of Marengo, Morrow county, Ohio, passed a resolution of necessity, declaring it necessary to surface-treat certain streets of the village. Three contracts were let by the village council to plaintiff in error, for the making of the improvements; the consideration for each contract being three hundred and fifty dollars. These contracts were performed by plaintiff in error, and on September 12, 1927, the village council voted to pay him for his work. Thereafter, J.E. Campbell, one of the defendants in error, as a taxpayer, filed an injunction suit and secured a temporary restraining order against the clerk and treasurer of the village, restraining them from paying the money to plaintiff in error, and plaintiff in error was made party to such suit. Issue was finally joined. Trial was had in the court of common pleas and the injunction was made permanent.
Plaintiff in error here appealed the case to the Court of Appeals of Morrow county. The cause came on for hearing on such appeal, whereupon counsel for defendant in error offered the transcript of the testimony taken in the court below, for the consideration of the Court of Appeals. Plaintiff in error objected to the use of this transcript. His objections were overruled, the transcript was admitted, and plaintiff in error had his exceptions noted. The cause proceeded to trial and the Court of Appeals affirmed the judgment of the court of common pleas and error is prosecuted here to reverse the judgment of the Court of Appeals.
Mr. T.B. Mateer and Messrs. Knepper, White, Smith Dempsey, for plaintiff in error.
Mr. Nelson Campbell and Mr. Benjamin Olds, for defendants in error.
This court is considering but one question, and that question is dispositive of the case, as the court views it.
The rule of Courts of Appeals requiring litigants in appeal cases to try their cases upon the transcript of the evidence taken in the trial court, supplemented by such additional oral evidence as the parties may present, has been considered by this court heretofore in the case of Union Trust Co. v. Lessovitz, 122 Ohio St. 406, 171 N.E. 849.
This court sees no reason for departing from the law laid down in that case, and reiterates paragraph 8 of the syllabus of that case as the law of this case, as follows:
"While the practice of the appellate court, requiring appealed cases to be tried upon the transcript of the evidence in the trial court supplemented by such additional oral evidence as the parties may present, is commendable where court and counsel can agree, under the plenary grant of our constitution permitting the parties in chancery cases to be heard de novo on appeal, litigants have the right to submit their evidence to the appellate court under the same legal rules applicable in the trial courts."
The judgment of the Court of Appeals is reversed, and this cause is remanded to that court for further hearing.
Judgment reversed and cause remanded.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.