DocketNumber： No 2026
Citation Numbers： 12 Ohio Law. Abs. 668
Judges： Allread, Hornbeck, Kunkle
Filed Date： 1/18/1932
Status： Precedential
Modified Date： 11/12/2024
Submitted on motion to certify our decision as being in conflict with Brooks v Lindsay, etc., 17 Oh Ap 225.
We were probably in error in holding that the two-issue rule applies where there is no evidence to support an issue upon which the court charges. The syllabus in Brooks v Lindsay would indicate a conflict between that decision and ours in the instant case. However, the syllabus relates to the particular facts in the specific case in which it is written. In the Brooks case there was a succession of erroneous charges the effect of which was to require the court to reverse and remand. We do not feel that there is such direct conflict between our judgment and the Brooks case as to require certification.
In the instant case, notwithstanding the charge of the court on undue influence, the record is convincing that the jury could not have based its verdict upon that claim in the petition.
The motion for rehearing and to certify will be overruled.