Opinion
No. 138
Decided November 6, 1947.
Appeal on questions of law — Bill of exceptions not duly filed stricken — Court of Appeals limited to record before it — Trial court's opinion not part of record, when.
1. Where a record of an action in a trial court discloses that a bill of exceptions was not duly filed, and was stricken, the Court of Appeals, on an appeal on questions of law, must base its determination of the action solely on the record before it.
2. The opinion of the trial court in an action is not a part of the record in such action, unless made so, and is not subject to consideration in an appeal on questions of law.
APPEAL: Court of Appeals for Shelby county.
Messrs. Cummins Boller and Mr. Royon G. Hess, for appellant.
Mr. Richard Faulkner and Mr. E.J. Garmhausen, for appellees.
This is an appeal on questions of law from a judgment of the Court of Common Pleas of Shelby county. This action was one for a divorce, the petition alleging that on the 19th day of November 1945 the plaintiff and Clifton A. Teegarden, the defendant, entered into a contract of marriage in Hamilton county, Ohio; that the contract was thereafter consummated; and that plaintiff and the defendant lived together as husband and wife. To the petition the defendant filed an answer denying the marriage contract. As far as this appeal is concerned we need not consider the interests of the other two defendants.
The matter was tried to the court which rendered a written opinion general in character upon both conclusions of law and fact. No separate findings of fact were made by the court and the opinion was not made a part of the record. On the issues joined the court found in favor of the defendant and ordered the plaintiff's petition to be dismissed. The only issue presented for our consideration is whether the lower court erred as a matter of law in determining that no common-law marriage existed.
The record discloses that the bill of exceptions was not duly filed and a motion to strike it from the files was sustained. We, therefore, have no bill of exceptions and our determination must be based solely upon the record before us. Counsel for the plaintiff make reference to the facts as related in the opinion of the trial court. This, however, is not a part of the record and is not subject to consideration in error proceedings. Baldwin v. State, 23 Ohio Law Abs., 147; In re Ruhl, 36 Ohio Law Abs., 250, 43 N.E.2d 760; Treiber v. Jaster, Dir., 55 Ohio App. 64, 8 N.E.2d 581; Eagleson v. McKee, 33 Ohio Law Abs., 38, 33 N.E.2d 417.
The plaintiff is urging that, from the facts disclosed and the opinion of the trial court, the judgment is contrary to law. In order to pass upon this question, it is necessary that we have a bill of exceptions as it is only through that channel that the evidence can be considered by this court.
We find no error in the record, and the judgment is affirmed.
Judgment affirmed.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.