Meyers v. Jones

OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court overruling the motion of defendant-appellant to dismiss the action and sustaining the motion of Ellis O. Jones, Jr., defendant-appellee, for the appointment of a successor trustee to Charles Meyers.

Eight errors are assigned and certain of them discussed and briefed at considerable length, and the questions sought to be raised are interesting. However, it is essential to even initiate the consideration of any of the errors assigned that wc have before us the trust agreement of which Clarence M. Jones is the settlor. The determinative questions require a construction of this trust agreement, and an examination of the record, .which consists in this Court of the transcript of docket and journal entries, discloses that the trust agreement is not before us in any manner whatever. It is not attached to any of the pleadings nor is sufficient subject matter thereof set out to enable us to determine the subject matter thereof. We find a photostatic copy of the trust agreement inserted among the flies constituting the transcript of docket and journal entries, but it is not authenticated and not brought onto the record. When the motion of the appellee to dismiss the appeal was before us, we overruled it upon the hypothesis that the claimed errors, or some one of them, would be exemplified by the record in the form in which it comes to us. Wd now find that that is not the situation.

Decided March 7, 1944.

The judgment will, therefore, be affirmed.

BARNES, P. J. and GEIGER, J., concur.