Opinion
No. 20744
Decided March 28, 1928.
Supreme Court — Affirmances on weight of evidence — Record certified for review by Court of Appeals.
CERTIFIED by the Court of Appeals of Cuyahoga county.
The original action in this case was one brought by the Commonwealth Banking Trust Company in the court of common pleas of Cuyahoga county against the Smith Oby Company, on a promissory note for $10,000, which the Smith Oby Company had executed and delivered to the Riverview Improvement Company, and which latter company, after indorsement, had delivered to the plaintiff in error, the Commonwealth Banking Trust Company, together with three other promissory notes, as collateral security for a $25,000 loan made by the banking and trust company to the Riverview Improvement Company.
The trial court overruled a motion by the banking and trust company for a directed verdict, and submitted the matter to the jury. The chief defense was that the banking company took the promissory note sued upon with knowledge of certain defenses of the Smith Oby Company to the collection of said promissory note; the paramount issue being that the banking and trust company was not an innocent holder in due course. The jury found for the defendant, and judgment was entered on the verdict. The bank prosecuted error to the Court of Appeals, which court, on June 27, 1927, reversed the judgment of the court of common pleas, on the ground that the verdict and judgment were manifestly against the weight of the evidence. About two months later, to wit, August 25, 1927, the Court of Appeals found and certified that its judgment was in conflict with the judgment pronounced by the Court of Appeals of Cuyahoga county in the case of John C. Boehm Co. v. Commonwealth Banking Tr. Co., post, 516, which action grew out of the same transaction, and was a suit upon one of the other promissory notes executed by certain contracting firms to the Riverview Improvement Company and indorsed by that company to the banking and trust company; and the judgment in the instant case was certified under the conflict rule to this court for review and final determination.
Messrs. Dustin, McKeehan, Merrick, Arter Stewart, and Mr. C.M. Horn, for plaintiff in error.
Messrs. Stearns, Chamberlain Royon, for defendant in error.
While this case has been certified to this court under the conflict provision of the Constitution, the record discloses that the judgment certified for review is a reversal of the court of common pleas upon the weight of the evidence, and that no other error is found in the record, a determination of the correctness of the judgment of the court below requiring a determination of the weight of the evidence. This court is not required to determine the weight of the evidence, and we therefore find it our duty to affirm the judgment of the Court of Appeals, which is accordingly done.
Judgment affirmed.
DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.