Leonard & Cook v. City of Cincinnati ( 1875 )

By the Court.

While it is clear enough that the justice of the peace must have held that the bricks and sand, in controversy, were of the property of the plaintiffs, it is-impossible, upon the record before us, to determine whether he did or did not err in so holding*

It can not be affirmed, as matter of law, that abutting-lot-owmers have no proprietory interest in the materials with which sidewalks upon the streets of cities are paved.. Facts may be readily suggested, under which such materials, subject to the public easement, would be the property of abutting proprietors. "We can not judicially know what the facts were in this case. The bill of exceptions can not avail to inform us. The only authority for taking a bill of exceptions on the trial of a cause before a justice of the-peace is found in the 93d section of the justices’ code, as amended February 11,- 3869 (66 Ohio L. 7), wherein the right is limited to an exception “to the opinion of the justice upon a question of law arising during the trial of a-cause 'and in such case it is required that the bill contain the exception, with the point (of law) decided. The-bill in this record does not purport to state any point of law decided by the justice ; but contains only the testimony offered on the trial. There is no authority for an exception to the opinion of the justice on a question of fact, and a bill-of exceptions embodying the testimony taken on the trial,-but not stating a point of law decided and excepted to, is not authorized. It may be, that a judgment rendered by a justice without any testimony tending to support it, and without any presumption in its favor, would be reviewed on a bill of exceptions containing the whole of the testimony, as, in such case, the question arising would be one of law merely. But such is not the case before us. The bill here does not purport to contain the whole of the testimony, nor does it show that the case was decided alone on the testimony set out in the bill of exceptions.

Motion granted, and the judgment of the District Court reversed, and the judgment of the Common Pleas affirmed.