DocketNumber： No. 1373
Judges： Consideration, Funk, Pardee, Took, Washburn
Filed Date： 3/9/1928
Status： Precedential
Modified Date： 11/12/2024
OPINION OF COURT.
The following is taken, verbatim, from the opinion..
The case was submitted to the jury upon two issues: first, was the plaintiff the owner of the note sued upon? and second, had the note been procured from the defendant by the fraudulent representations of the original payee thereof?
The plaintiff in error is right as to his claim that the admission, by the trial court, of the testimony in regard to the letters which the defendant wrote to her husband and received from hifn in the fall of 1923, was erroneous. If the former husband, the original payee of the note, had been the plaintiff in the trial court, this evidence, of course, would have been competent; but a third party, who claimed to be the sole owner of the note, being the plaintiff, this evidence was hearsay, was improperly received, and was prejudicial..
The trial court, in its charge to the jury, said that the burden of proof was upon the defendant to prove, by a preponderance of the evidence, that the note and mortgage in question had been procured from her by the fraudulent representations of the original payee.
This is the correct rule. This subject was ■ fully discussed in the case of Bates, Trustee v. Firestone, decided by this court and reported in the 20 Oh. Ap. 61.
After fully reading the record in this case, we cannot say that the findings of the jury upon the two issues made by the pleadings and evidence is manifestly against the weight of the evidence. We-do not find the affidavit which was used upon the motion for a new trial. It is not attached to the bill of exceptions and is not among the original papers. To have this affidavit available for a reviewing court to consider upon a petition in error, it is necessary to have the same attached to and made a part of the bill of exceptions. This not having been done, we are unable to consider the affidavit in arriving at a proper determination in this case. Goldsmith v. State, 30 OS. 208.
Two issues having been submitted to the jury, and it having returned a general verdict for the defendant, and there not being any way by which we can tell upon which issue the jury returned its verdict, and there not being any prejudicial error as to one, we cannot reverse the judgment, although we do find prejudicial error in the record as to the other.