Keating v. Spira

OPINION

By THE COURT.

Submitted on motion by the defendant-appellee for an order affirming the judgment of the trial court for the reason that no bill of exceptions has been filed herein by appellant as required by law and the errors assigned are such as can be disclosed only by a bill of exceptions.

The assignments of error are in the following words:

“The Court of Common Pleas erred in all of its orders, decrees and judgments adverse to each and both of plaintiffs below.”

The record discloses that the cause came on for hearing on the 6th day of March, 1947; that all the parties were present and the trial Was had. and concluded. On April 18 the judgment entry was journalized, the same being in favor of the defendant. On June 9, 1947, a motion for a new trial was filed on the grounds of newly discovered evidence. This motion was overruled on July 25, 1947. The judgment and the motion for a new trial are the only orders or decrees found in the transcript of docket and journal entries. The notice of appeal is therefore directed to these two court rulings. In order to determine whether or not the trial court abused its discretion in overruling the plaintiff’s motion for a new trial it is necessary that we have a bill of exceptions. On February 4, 1948, leave was granted the' appellant to file his bill of exceptions within thirty days. This order has not been complied with, and as a bill of exceptions is necessary to exemplify the errors complained of, the motion to affirm will be sustained.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.