Cleveland National Fire Insurance v. Booth , 1 Ohio Law. Abs. 571 ( 1923 )

Washburn, J.

Case No. 022 was an action to recover attorney’s fees, which, resulted in a judgment for the plaintiff below. There are no errors complained of except such as arise from the filing of a motion for new trial. The certificate of journal entries discloses that the journal entry in which the judgment was rendered ends as follows: “Defendant’s motion for new trial is heard and refused, to which ruling defendant excepts.” No such motion appears in the files, or in the bill of exceptions; nor is there any entry on the appearance docket showing the filing of a written motion for a new trial. The above-quoted portion of the entry of the judgment may have reference to an oral motion for new trial, but in order that a reviewing court may reverse for error in overruling a motion for new trial the grounds of the motion must appear in the record. The grounds, of this motion, if such motion was made, either verbally or in writing, do not appear any place in the record.

Section 11579, General Code, requires that the application for a new trial shall be “upon written grounds, filed at the time of making the motion,” and the Supreme Court has held, in Hoffman v. Gordon é Bro., 15 Ohio St., 211, that “the refusal of a new trial, where no reasons for the new trial are alleged in the motion therefor, cannot be assigned for error. Westfall v. Dungan et al., 14 Ohio St. Rep., 276, affirmed.”

In the ease of Randall v. Turner, 17 Ohio St., 262, the first paragraph of the syllabus is:

“1. The finding of the court upon issues of fact, or a verdict of a jury, cannot be reviewed on error, when the record does not show that there was a motion for a new trial for the reason that such finding or verdict was against the law or evidence.”

The case last referred to is very similar to the ease at bar; there it appeared from the journal entry of the court that the “defendants moved for a new trial, which was overruled,” but the record did not show upon what grounds or reasons the motion was based.

It is therefore apparent that the record discloses no error for which this court may properly reverse the judgment.

■Subsequent to the commencement of the above case in this court, No. 622, proceedings were had in the common pleas court by which the bill of exceptions in said case No. 622 was corrected to show that no motion for a new trial was filed, and the entry of judgment was amended by striking out the portion thereof above quoted indicating that a motion for a new trial had been filed, and these proceedings are brought before this court for review in case No. 742.

The transcript of docket entries shows that a motion was filed to set aside and vacate the orders of the court making such corrections in the record, the ground of the motion as stated therein being “for irregularity in obtaining said judgment and said order” of correction, but no irregularity is specified in the motion.

The certificate of journal entries shows that on the hearing of that motion the court found and determined “that the proceeding initiated by plaintiff on November 21, 1922, and the order of the court obtained on said date [meaning the corrections made as above set forth] are regular and defendant’s motion is overruled. Defendant excepts. ’ ’

However, no bill of exceptions was prepared and filed showing what evidence was taken, or upon what the court of common pleas based the finding that such proceedings for correction were in all respects regular and proper. In the absence of a bill of exceptions showing such matters, this court must indulge the presumption that such finding of the common pleas court was justified by the showing made before that court upon the hearing which resulted in the finding of the court that there had been no irregularity in the former proceedings.

It therefore follows that the judgment and proceedings in both cases must be affirmed.

Judgments affirmed.

Funk, P. J., and Pardee, J., concur.