Hulett v. Hulett , 18 Ohio Law. Abs. 63 ( 1934 )

OPINION

By BARNES, J.

We will now take up in order the grounds upon which motion 4s based.

1. THE PETITION IN ERROR IS NOT VERIFIED.

The law is very clearly announced by Judge McIlvaine in Hanover, administrator v Sperry et, 35 Oh St, 244, at page 246:

“Where the petition in error is filed by a party to the judgment and contains simply an assignment of error upon the record which is exhibited and proves itself, such petition is not a pleading of fact, but tenders issues of law merely. * * * But where the petition in error contains allegations of material facts not appearing in the record and, going to the right of -plaintiff to prosecute the proceeding, we can find no sufficient reason for holding that such petition is not a pleading of fact within the rule requiring verification.”

We are also referred to Ohio Jurisprudence, Vol. 2, §287, under Appeal and Error, where the subject of verification is discussed. The notes thereunder contain -references to various Ohio decisions.

It is our conclusion that under the state of the present record no verification is required.

2. THE PLAINTIFF IN ERROR HAS WAIVED HER RIGHT TO ATTACK THE JUDGMENT OF THE COURT OF DOMESTIC RELATIONS AND IS ESTOPPED FROM DENYING ITS VALIDITY.

This ground goes to the merits of the proceeding and we will not adopt the procedure of considering this question on motion.

3. NO BILL OF EXCEPTIONS HAS BEEN FILED.

Where it is claimed that the error appears from the pleadings and transcripts of docket and journal entries, no bill of exceptions is required.

Regardless of the language of the petition in error, it will be limited to the pleadings and orders thereunder.

4. NO MOTION FOR NEW TRIAL WAS MADE.

This is not necessary where no bill of exceptions is filed.

The motion to dismiss the petition in error will be overruled, at costs of defendant in error. Exceptions will be allowed. Defendant in error may file brief within rule. Entry may be drawn accordingly.

HORNBECK, PJ, concurs.