Moeller v. Omar, Inc.

OPINION

By THE COURT.

This is a motion submitted by the defendant-appellant seeking an order requiring that each of the parties hereto make a deposit of funds with the proper officer or official of this Court, in an amount which shall be sufficient to pay to Hazard Okey for his services to be rendered as special master commissioner.

The motion will be sustained to the extent that each party will be required to make necessary arrangements with the master commissioner to secure him for the taking of the testimony which they desire to submit in the case.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur. Decided September 27, 1951. Addison & Carpenter, Elwood L. Carpenter, of Counsel, Columbus, for plaintiffs-appellees. Willis H. Liggett, Columbus, for defendant-appellant.

No. 4185.

OPINION

By THE COURT.

Submitted on motion of plaintiffs-appellees for an order to permit them to give further testimony before Hazard Okey as Master Commissioner, herein, on the sole issue of whether or not the defendant-appellant proposes to use the premises in question as a parking lot.

The cause has been submitted to the court but no decision rendered. The appeal is on questions of law and fact. Although the plaintiffs rested their case there is no stipulation which would preclude the order of the court sustaining the motion. Manifestly the failure to introduce the testimony resulted because of a misconception on the part of counsel for the plaintiffs as to the making up of a proper record in this court.

The court in the interest of justice and within its discretionary power sustains the motion and fixes a time within which the testimony shall be taken as ten days after the journalizing of the entry on this motion. We will then take the case without further oral argument and without further briefs unless counsel request time within which to brief the new question, if any, raised by the additional testimony.

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