Opinion
No. 69-634
Decided September 24, 1970.
Appeal — Summary judgment — Bill of exceptions not necessary — Praecipe requesting clerk to prepare original papers — "Original papers" include, what.
APPEAL from the Court of Appeals for Hamilton County.
Plaintiffs, Albert and Elsa Skinner, appellants herein, instituted an action in the Court of Common Pleas seeking to recover damages for the loss of gravel machinery and trucks which were located in a gravel pit and allegedly buried under fill dirt by defendant, H. F.H. Hosea Company, appellee herein. At the time the fill dirt was deposited in the gravel pit appellee was engaged in a highway construction project and it was necessary for the gravel pit to be filled above the water line.
Ultimately, issues were joined upon the amended petition, the answer thereto, and the reply. Appellee filed a motion for summary judgment, or in the alternative for judgment on the pleadings. The motion was granted, the court stating in its entry:
"Upon consideration of the pleadings, affidavits, depositions and other evidence previously filed in this action, the court finds the motion for judgment on the pleadings not well taken and hereby overrules same.
"Further considering the motion of the defendant for summary judgment, which judgment [sic] is addressed to the contention by the defendant that the statute of limitations had expired prior to the filing of this cause of action, the court finds said motion well taken and does hereby grant the motion of the defendant for summary judgment * * *."
Appellant appealed to the Court of Appeals and submitted the following praecipe to the clerk of the Court of Common Pleas:
"Please prepare and file with the Court of Appeals for Hamilton County, Ohio, a transcript of the docket and journal entries together with the original papers in the above entitled cause."
In its supplemental brief in the Court of Appeals, appellee contended that there was no bill of exceptions filed by appellant and urged that there was nothing before the court upon which the appeal could be maintained.
Thereafter, upon oral motion of appellee, the Court of Appeals dismissed the appeal.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Messrs. Holbrock Jonson, for appellants.
Messrs. McCaslin, Imbus McCaslin, Mr. C.J. DeMichelis and Mr. W. Steven Boller, for appellee.
The single proposition of law advanced by appellant in this appeal is that a bill of exceptions is not necessary in the appeal of a summary judgment case.
That proposition was settled in Morris v. First National Bank Trust Co., 15 Ohio St.2d 184, wherein the syllabus reads:
"A bill of exceptions is not necessary in the appeal of a summary judgment in a case filed in the trial court after the November 5, 1965, amendment to Section 2311.041, Revised Code, the summary judgment statute."
Appellee argues, however, that this court cannot pass on the correctness of the judgment of the Court of Appeals herein for the reason that the record does not show the nature of the motion or the grounds for dismissal by the Court of Appeals.
Although the record is not clear in the respects noted by appellee, a careful examination and consideration of the record leads inescapably to the conclusion that the Court of Appeals dismissed the appeal for the reason advanced by appellee in its supplemental brief, i. e., the lack of a bill of exceptions.
The praecipe filed by appellant with the clerk of the Court of Common Pleas requested the clerk to prepare "* * * a transcript of the docket and journal entries together with the original papers * * *."
Appellee points out that in Morris the praecipe instructed the clerk to prepare all the papers and items on file and that the praecipe here does not. We are of the opinion that Morris cannot be distinguished on that basis. In this case, the praecipe requested, without qualification, that the clerk prepare "the original papers" and was sufficient to indicate to the clerk that all the "original papers" in the case were intended.
The effect of the provisions of R.C. 2311.041, that summary judgment must be determined from certain designated items filed in the case, is to make those items original papers in the case. As such, they are as much a part of the record as the pleadings, and, upon appeal, such items are to be certified to the Court of Appeals as are the other papers making up the record in the case.
In the instant case, the "original papers" would include the things considered by both the trial court and the Court of Appeals, namely, "the pleadings, affidavits, depositions and other evidence previously filed in * * * [the] action."
"Thus, the Court of Appeals had before it everything which the trial court was allowed, by statute, to consider in ruling upon the motion for summary judgment." Morris v. First National Bank Trust Co., supra ( 15 Ohio St.2d 184, 188).
Hence, the Court of Appeals was in a position to review the action of the trial court in granting the motion for summary judgment. Under such circumstances, its dismissal of the appeal was erroneous.
The judgment of the Court of Appeals is reversed and the cause remanded to that court for further proceedings according to law.
Judgment reversed.
O'NEILL, C.J., LEACH, SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.