Sams v. Bindley

OPINION

By GUERNSEY, J.

The only error specified in the briefs of the plaintiffs in error filed herein, is that the finding and judgment of the court is against the manifest weight of all the evidence.

In the case of Grall, Mayor v King, 14 Oh Ap, page 88, it is held that a city is a necessary party to an error proceeding from a judgment of the Common Pleas Court reversing an order of a municipal civil service commission removing a chief of police. The reasoning in this opinion applies as well to an order of the Common Pleas Court reversing an order of a municipal civil service commission removing a fireman in the classified service. Consequently The City of Marion is a necessary and proper party to this error proceeding.

In the entry overruling the motions for new trial the City of Marion was treated and considered as the party making such motions, and by his approval of this entry by his attorney, the defendant in error is precluded and estopped from now asserting that said motions for a new trial were not made on behalf of said City of Marion, and consequently The City of Marion was entitled, if it so elected, to prosecute error from the overruling of said motions for a new trial.

The first ground of defendant in error’s motion to dismiss the petition in error is therefore without merit.

We will next consider the second ground for dismissal, set forth in said motion.

In 3 Ohio Jurisprudence at pages 364 and B65, it is stated that:

“It is a general principle of law that since the right to a review of findings and decisions on the weight of the evidence by error is statutory, the party seeking the review must conform to the statute giving the right. To do this he must have exhausted his remedy in the court below where the evidence was heard. The remedy In the trial court is never exhausted until the court has refused him a new trial upon the motion assigning for cause that the finding is not supported by sufficient evidence or that it is contrary to the evidence.” t * *

“The motion for new trial is necessary whether the trial is by the court or to a jury.” * * *

This principle is supported by many eases including the case of Insurance Company v McGookey, 33 Oh, St 555, 563 and 563.

Sec 13359. GC, governing proceedings in error provides that the petition in error shall set forth the errors complained of.

A petition in error, filed within the statutory period may be amended after the expiration of that period provided the amendment does not set forth a new and distinct allegation of error, or cause for reversal, but merely supplies a material allegation of fact affecting the jurisdiction of the case, not of the subject matter thereof, 3 O. J. 333.

Under the authorities mentioned, the right to a review of findings avd decisions on the weight of the evidence is wholly contingent upon the party seeking such a review having moved for a new trial in the trial court upon a motion assigning for cause that the finding is not supported by sufficient evidence and the court having refused him a new trial upon such motion. It follows that as his right to review is wholly contingent upon the making and overruling of such a motion, that error in the overruling of a motion for a new trial on the weight of the evidence must not only be excepted to but must be assigned in the petition in error in order to entitle the party to a review of the finding and decision on the weight of the evidence.

Sec 13359, GC, above mentioned, requires that the petition in error set forth the errors complained of. In the case at bar there is no complaint of error by the court in overruling the motion for new trial, and consequently any error that may have intervened in the overruling of such motion is not a subject of adjudication by this court. Furthermore, the petition in error cannot be amended to supply an allegation of error in the overruling of the motion for new trial as such allegation would amount to a new and distinct allegation of error or cause for reversal affecting the subject matter of the proceeding in error.

This holding is in accordance with the general rule set forth in 3 C. J. page 13S9, "that matters assignable as grounds for new trial cannot be made the subject of an independent assignment of error in the reviewing court, but must be embraced in the motion for new tria! and the action of the trial court in overruling the motion assigned as error, that all errors which are grounds for new trial and which are not specified in the motion for new trial are waived, and that, even though specified in the motion for new trial, such matters cannot be considered unless error is assigned to the action of the court in sustaining or overruling the motion.”

We therefore arrive at the situation in the case at bar where the only error specified in the briefs of plaintiffs in error is an error which upon the record in this case is not a subject requiring consideration by this court. While technically this may not constitute a ground for dismissal of the petition in error, it does constitute ground for affirmance of the judgment of the lower court, and the motion to dismiss will therefore be treated as a motion to affirm the judgment of the Common Pleas Court, and the judgment, for the reasons mentioned, will be affirmed.

And the judgment will be affirmed for the further reason not comprehended by the motion to dismiss, that the briefs of the pla'ntiffs in error do not specify the issue or issues of fact claimed to be not sustained by sufficient evidence and do not specify by number all the pages of the bill of exceptions (and such pages only) containing the evidence tending to prove or disprove such issue or issues, as required by Supplemental Rule 13 adopted by this court January 31, 1934, for the consideration by this court of an assignment of error that the verdict, report or decision is against the weight of the evidence. This rule is as follows:

“As to all briefs filed after February 10. 1934, no assignment of error chat the verdict report or decision is not sustained by sufficient evidence, namely that it is against the weight of the evidence, will be considered, unless plaintiff in error shall specify the issue or issues of fact claimed to be not sustained by sufficient evidence, and shall specify by number all the pages of the bill of exceptions (and such pages only), containing the evidence tending to prove or disprove such issue or issues; and when plaintiff in error shall have so specified such issue or issues and page numbers, defendant in error shall specify by number the pages, if any, of the bill of exceptions in addition to those specified by plaintiff in error, which defendant in error contends contain evidence tending to prove or disprove such issue or issues; and in considering such assignment of error, only such pages of the bill of exceptions will be considered, as are so specified in the briefs.

Where an assignment of error is that the verdict, report or decision, is not sustained by any evidence, such assignment will not be considered unless plaintiff in error shall point out such issue or issues of fact claimed to be not sustained by any evidence; and when plaintiff in error specifies such issue or issues, defendant in error shall specify by number the pages of the bill of exceptions claimed to contain evidence tending to prove such issue or issues, and the pages so specified shall be the only ones considered in passing on such’ assignment of error.

The foregoing rule shall also apply to briefs in criminal cases, in relation to the verdict.

Adopted January 31, 1934.”