Opinion
No. 22258
Decided November 19, 1930.
Appeal and error — Bill of exceptions — Material proceedings at trial to be included — Motions for judgments, colloquies concerning them and rulings thereon — Mandamus lies to compel signing correct bill incorporating proceedings.
1. Proceedings at a trial, such as motions for judgments made by the parties, colloquies concerning them between court and counsel, and the ruling of the court upon the motions, are material and should be included in the record; and, at the request of a party, if such proceedings actually did occur at the trial and if they are not otherwise adequately shown by the record, they should be incorporated in the bill of exceptions as a predicate for the prosecution of error.
2. In such case, where the trial judge has elided such proceedings from the bill, mandamus will lie to compel him to sign a true and correct bill incorporating such proceedings, if it be found that they actually did occur at the trial.
ERROR to the Court of Appeals of Cuyahoga county.
This action, originating in the Court of Appeals, was one in mandamus asking for a writ directing the defendant judge to sign and allow a correct bill of exceptions or to show cause why a writ should not issue requiring him to correct said bill.
The defendant filed a general demurrer to the petition in mandamus. The appellate court sustained the demurrer and dismissed the petition, whereupon error was prosecuted to this court.
The petition, together with its attached exhibit, alleges in substance that after an adverse judgment had been rendered in the trial court against the relator the latter proceeded to prosecute error therefrom to the Court of Appeals, and, as a part of such proceeding, the relator filed a bill of exceptions with the trial judge containing certain occurrences in the trial court which the petition averred to be a full, complete, and correct transcript of the proceedings had before that court; that the trial judge struck such proceedings from the bill, which were pertinent and material to the trial of the cause, to the prejudice of the relator.
Messrs. Schwan, Schwan, Thobaben Read, for plaintiff in error.
Messrs. Boer, Arnold Tobias and Mr. J.C. McClelland, for defendant in error.
In the disposition of this case we assume that the allegations of the petition are, by the demurrer, confessed to be true. Attached to the petition is an exhibit containing important proceedings occurring at the trial, but which were eliminated from the bill of exceptions. These comprise motions for judgment made by both parties, colloquies concerning them occurring between court and counsel, the ruling of the court on both motions, and the finding of the court concerning the method of assessing plaintiff's damages. The petition alleges that these proceedings actually occurred during the trial, but were elided from the bill by the trial judge. It is now urged that the determination whether a bill is true or otherwise rests in the discretion of the trial judge and that mandamus will not control his discretion in that respect. We cannot adopt the argument of counsel for defendant in error in his insistence that the action of the judge is discretionary, or that his certificate is so conclusive that the higher courts cannot inquire into the correctness of the bill. Adherence to such a principle would confer powers that might prove to be arbitrarily or autocratically exercised; and so exercised as to deprive the complaining party of his right to prosecute error.
It has frequently been held by this court that mandamus will lie to compel the trial judge to sign and allow a bill which a higher court finds to be true and correct. Nearly one hundred years ago this court upheld the use of the writ, and in the course of its opinion said that its exercise "is to compel the court below to place upon the record a true statement of the facts as they existed." State, ex rel. Atkins, v. Todd et al., Judges, 4 Ohio, 351.
The use of the writ in similar cases has been upheld by this court in more recent cases. Beebe, Judge, v. State, ex rel. Starr Piano Co., 106 Ohio St. 75, 80, 139 N.E. 156; Konigsberg v. Lamports Co., 116 Ohio St. 640, 642, 157 N.E. 477.
Naturally great weight should be given to the trial court and to his recollection and notes as to what occurred at the trial; and the burden of showing that the bill is untrue rests upon the party complaining. But when, as here, the relator asserts that material proceedings actually occurring upon the trial have been eliminated from the bill, and that in consequence of such elimination the certified bill is not true or correct, if such proceedings are not otherwise adequately shown by the record, mandamus will lie to compel the trial judge to sign and allow a true and corrected bill incorporating such proceedings therein.
The Court of Appeals erred in sustaining the defendant's demurrer to the petition, and the cause will be remanded to that court with instructions to overrule the demurrer and for further proceedings according to law.
Judgment reversed.
MARSHALL, C.J., KINKADE, ROBINSON, MATTHIAS, DAY and ALLEN, JJ., concur.