Opinion
No. 29363
Decided May 5, 1943.
Appeal — Court of Appeals to Supreme Court — Dismissal — Insufficient record — No bill of exceptions.
APPEAL from the Court of Appeals of Richland county.
The facts are stated in the per curiam opinion.
Messrs. Jones, Day, Cockley Reavis and Messrs. Weldon Huston, for appellees.
Messrs. Hart McHenry, Mr. Joseph A. Bayer and Mr. John C. O'Donnell, prosecuting attorney, for appellants.
An action was instituted in the Court of Common Pleas to enjoin proceedings to assess, certify and collect taxes against an estate. That court granted a permanent injunction against the county auditor after trial upon the pleadings, evidence, briefs and argument of counsel. A motion for new trial was overruled, whereupon the defendants filed a notice of appeal to the Court of Appeals on questions of law and fact and gave an appeal bond. A bill of exceptions was duly filed in and allowed by the Court of Common Pleas and was thereafter duly filed in the Court of Appeals.
The journal entry of the Court of Appeals recited that the "cause came on for hearing on the pleadings and the evidence and upon the briefs and argument of counsel." That court found for the plaintiffs, granted a perpetual injunction and stated in its journal entry, "Motion for new trial overruled." Thereafter the defendants filed a notice of appeal to the Supreme Court and this court allowed a motion to certify the record. No bill of exceptions was filed in the Court of Appeals within twenty days from the allowance of the motion to certify the record, as required by Section 11564, General Code.
The record before us does not contain any agreed or stipulated facts by counsel or findings of fact and conclusions of law by the Court of Appeals The pleadings contain controverted allegations involving the legal questions at issue.
The provision of Section 12223-22 (2), General Code, relating to retaining for hearing as an appeal on questions of law an appeal on questions of law and fact, does not apply to the situation before us in this case.
As no bill of exceptions was filed in this court, presenting the proceedings and evidence in the cause in the Court of Appeals which this court is asked to review, the appeal is, upon motion of the appellee, dismissed for insufficient record. Jones, Treas., v. Ralston, 116 Ohio St. 734, 158 N.E. 88.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, BELL and TURNER, JJ., concur.
HART and WILLIAMS, JJ., not participating.