Challen v. Cincinnati , 40 Ohio St. (N.S.) 113 ( 1883 )

By the Court.

After a verdict for plaintiffs for damages caused by the change of an established grade of the street in front of their lot, the city moved for a new trial, to which plaintiffs consented. The city then withdrew said motion and filed another, calling it a motion “in arrest of judgment and for judgment for the defendant on the pleadings.” The court entered upon the journal, agamst the objection and exception of plaintiffs, the words, “it appearing to the court that b}' the admission of plaintiffs upon the trial they were not owners of the premises at the time the work was done,” &c., and taking that entry with the pleadings, sustained the city’s motion and dismissed the action at plaintiffs’ costs.

. Held: An admission made during the jury trial not incorporated into a pleading, was only a part of the evidence, and has no place in the record except in a bill of exceptions. Hence, the statement on the journal must be disregarded. On such a motion the court could only look at the pleadings. (Sec. 384, Civil Code, S. & C., 1054.)

Judgment of district court and common pleas reversed and cause remanded for a judgment in favor of plaintiffs upon the verdict.