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Lynch v. Doran

Supreme Court of Ohio
Jan 3, 1968
233 N.E.2d 518 (Ohio 1968)


No. 40809

Decided January 3, 1968.

Appeal — Bill of exceptions — Section 2321.05, Revised Code — Consideration of weight of evidence — Complete bill of exceptions necessary — Ruling on other assignments of error required.

APPEAL from the Court of Appeals for Fairfield County.

Plaintiff, appellee herein, sued defendant, appellant herein, in the Lancaster Municipal Court for $1,437.50 on account for goods and services. The cause was tried to the court without a jury and plaintiff obtained judgment for $319.70.

On appeal to the Court of Appeals for Fairfield County plaintiff relied on three assignments of error: (1) The judgment was contrary to law, (2) the court erred in refusing to consider certain evidence and (3) opposing counsel was alleged to have appropriated plaintiff's evidence after it had been introduced but before the court had the opportunity to consider it. Plaintiff submitted a partial bill of exceptions consisting of (1) his testimony on direct, cross and redirect examination and (2) the ruling of the court excluding certain testimony of one of defendant's witnesses. Defendant submitted a partial bill of exceptions consisting solely of defendant's testimony on direct examination.

The Court of Appeals did not pass on plaintiff's assignments of error, but reversed the judgment as against the manifest weight of the evidence. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Mr. Albert E. Savoy, for appellee.

Messrs. Dagger, Lantz Johnston, Mr. William C. Dagger and Mr. Harry Kilburger, for appellant.

The Court of Appeals could not consider the weight of the evidence in this case without a complete bill of exceptions. There is no such bill here.

It was argued that, by reason of provisions of the second paragraph of Section 2321.05, Revised Code, it was the duty of appellee to present any evidence favorable to appellee if such evidence was not included in the appellant's bill of exceptions. That paragraph reads:

"If an appellant inadvertently omits a necessary part of the evidence or trial procedure necessary for a complete presentation of his assignments of error, or an appellee deems that a necessary part has been omitted, the Court of Appeals, upon motion filed before the appeal has been assigned for trial, accompanying such motion with that part of the record inadvertently omitted, or such as the appellee claims as necessary, may permit or direct such evidence or trial procedure properly certified by the trial court to be appended to the bill of exceptions previously filed." (Emphasis added.)

There is nothing in this language which imposes upon appellee any duty whatever to try to have added to the record anything except what may be "necessary for a complete presentation of [appellant's] * * * assignments of error * * *." Certainly, it imposes no duty on appellee to present to the Court of Appeals the remaining part of the evidence where the appellant has not assigned as an error that the finding of the trier of the facts was against the weight of the evidence.

Although the Court of Appeals erred in reversing on the weight of the evidence without a complete bill of exceptions, plaintiff is entitled to a ruling on his three assignments of error that were not passed upon by the Court of Appeals.

The judgment of the Court of Appeals is therefore reversed and the cause is remanded to that court for further action not inconsistent with this opinion.

Judgment reversed.


Summaries of

Lynch v. Doran

Supreme Court of Ohio
Jan 3, 1968
233 N.E.2d 518 (Ohio 1968)
Case details for

Lynch v. Doran

Case Details


Court:Supreme Court of Ohio

Date published: Jan 3, 1968


233 N.E.2d 518 (Ohio 1968)
233 N.E.2d 518

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