Opinion
No. 29549
Decided November 24, 1943.
Bill of exceptions — Remand by appellate court for correction — Necessary to show omission through accident or error — Section 11572-a, General Code — Application for diminution after appellate court granted rehearing — Error to grant application to supply grounds for reversing judgment — Certificate of official court reporter insufficient verification, when — Section 11571, General Code — Charge to jury not reviewed, when — Party may not complain of nonprejudicial error.
1. Before an appellate court may remand a bill of exceptions to a trial court for correction upon application made under Section 11572- a, General Code, a showing must be made that an omission in such bill occurred through accident or error.
2. Where the application for diminution of a bill of exceptions states that it is made after the appellate court had granted a rehearing and for the purpose of supplying the appellate court with grounds for reversing the judgment of the trial court, the granting of such application is erroneous.
3. The certificate of the official court reporter attached to the transcript of testimony is not a sufficient verification of a bill of exceptions unless the record discloses notice to the adverse party of the filing of such bill and that no objections were filed within ten days thereafter. (Section 11571, General Code.)
4. Where the correctness of the charge of the court to the jury is dependent upon the evidence and the bill of exceptions does not contain all of the evidence a reviewing court cannot say that portions of the charge to the jury which are complained of were not properly given.
5. A party may not successfully complain of error unless he or his interests are prejudiced thereby. (Section 11364, General Code.)
APPEAL from the Court of Appeals of Trumbull county.
This case grows out of an automobile accident. It has been tried three times. The verdict of the jury on the first trial was in favor of defendant. A new trial was granted. The jury's verdict on the second trial was in favor of plaintiff and on appeal the judgment thereon was set aside by the Court of Appeals. The verdict of the third jury was in favor of the defendant. The judgment thereon was set aside upon appeal to the Court of Appeals by plaintiff below because of the reading of Section 6310-22, General Code, to the jury as a part of the general charge.
The bill of exceptions filed by plaintiff in the Court of Appeals on March 16, 1942, and refiled in same court on March 26, 1942, contains the following certificate of the trial judge:
"This record contains only such testimony as is requested by plaintiff's counsel and is not a complete bill of all testimony."
The official court reporter's certificate reads as follows:
"The enclosed record contains extracts from the testimony in the case of Willard G. Elser vs Earl Parke, Jr. and covers only such details as were requested by Mr. Nathan Sieman on behalf of the plaintiff, as follows:
"1. Elser, only from time left store to time of accident — Description of what happened.
"2. Sager.
"3. Shafer. (only where repeated 3 times over court sustaining objection that defendant said he was on the right side of the road and plaintiff on the wrong side.)
"4. Earl Parke only details of accident leaving out description of injuries.
"5. Special charges. (only of defendant.)
"6. Argument.
"7. General charge.
"8. Earl Parke cross-examination in accordance with amendment ordered by Judge Maiden March 13, 1942."
The record in the Court of Appeals shows the following docket entries:
"11/20/42. Judgment reversed and cause remanded for error in charging Section 6310-22, General Code, which was inapplicable under the evidence and accordingly prejudicial. Exceptions. See Scott, Admr., v. Hy Grade Food Products Corp., 131 Ohio St. 225. (No further opinion).
"12/3/42. Entry of 11/20/42 vacated, set aside and held for naught. Rehearing granted upon application therefor.
"(No journal furnished for the above entries.)"
On December 8, 1942, plaintiff filed the following motion for diminution of record:
"Now comes the plaintiff, appellant, herein, and in the interest of justice moves the court for a diminution of the record in this case, as permitted under Section 11572- a of the General Code of Ohio.
"Plaintiff requests the court to direct the bill of exceptions in this case back to the Common Pleas Court with instructions to said court and court stenographer to amend said partial bill of exceptions by adding thereto and incorporating therein the remainder of the testimony of the witness, L.B. Schaefer, not already contained in said bill of exceptions; to add therein the portion or portions of the record wherein a drawing by said witness, Mr. Schaefer, identified as Defendant's exhibit B and also as plaintiff's exhibit, was received in evidence by the court, said drawing now being affixed to the present bill of exceptions but no reference being contained therein as to its having been admitted into evidence by the court, which in fact it was; and to add thereto the portion of the record where the court took judicial notice after examining the almanac, of the fact that the sun set at 5:51 p. m., Warren standard time on the day the accident herein occurred.
"The reason the above matter was not originally contained in the partial bill of exceptions was that the plaintiff had no money with which to prepare a complete bill of exceptions and he still continues unable to prepare a complete bill of exceptions, but must furnish the additional requested matter above referred to in order that the court may intelligently consider this case on rehearing.
"The court reversed the judgment of the lower court in this case on the grounds that prejudicial and reversible error had been committed in charging the jury upon Section 6310-22 of the General Code of Ohio, which had no application to the facts in this case wherein both vehicles were proceeding upon the same highway. However, defendant filed an application for rehearing on the ground that the two-issue rule applied. The court granted said rehearing on the ground that the record, as it then stood, did not contain evidence showing that both the plaintiff and defendant had turned their vehicles from a straight course, and that it would be necessary for the record to so indicate in order for the court to reverse the lower court because of the giving of Section 6310-22 of the General Code of Ohio.
"It is for the purpose of supplying the court with this necessary testimony, which was brought out in the trial of the case but not transcribed by reason of economy, that the plaintiff now requests the court for a diminution of the record to have this essential matter now made a part of the partial bill of exceptions. Unless this allowed, a miscarriage of justice will result and the plaintiff will be deprived of the right to a reversal of the judgment of the lower court for the erroneous giving of 6310-22 of the General Code of Ohio, which had no application in this case and, therefore, constituted reversible error.
"Respectfully submitted,
"Sieman Sieman,
"Attorneys for plaintiff-appellant.
"Certification is hereby made that a true copy of the foregoing motion for diminution of record was served upon G.H. Birrell, attorney for the defendant-appellee herein, on the 9th day of December, 1942"
The Court of Appeals granted plaintiff's motion for diminution of record under the following journal entry:
"This matter coming on to be heard by the court upon the motion of the plaintiff-appellant for diminution of the record, and, upon due consideration the court finds that, in the interests of justice, said motion should be granted.
"The court, accordingly, orders, adjudges and decrees that plaintiff's motion for diminution of record be, and the same is hereby, granted and plaintiff-appellant is permitted to amend the partial bill of exceptions now on record. Exceptions granted to defendant-appellee."
On February 11, 1943, plaintiff filed in the Court of Appeals what is entitled: "Supplementary to Bill of Exceptions filed March 16, 1942," which contains no certificate of any kind by the trial court but does contain the following certificate of the official court reporter:
"This is to certify that the foregoing is additional testimony in case 45213 Willard G. Elser vs Earl Parke Case tried Dec. 8, 9, 10, 11, 1941. Bill of exceptions was filed March 16, 1942. This is a correct transcript of the additional testimony requested by Mr. Sieman counsel for plaintiff.
"February 4, 1943.
"Mary S. Andrews
"(Notarial Seal)
"Official Court Reporter."
[No affidavit]
On February 25, 1943, defendant filed the following objections in the Court of Appeals:
"Now comes Earl Parke, defendant-appellee, and herewith enters his objections to the consideration by this court of all portions of the bill of exceptions which were filed more than the forty days after the overruling of the motion for a new trial, specifically the portion contained in the original binder of the bill of exceptions, and marked as pages 92 to 116 inclusive, which matter was prepared and filed sometime after March 16, 1942, and included in the bill of exceptions which was then refiled March 26, 1942, and the portion of the bill of exceptions now denominated 'supplementary to bill of exceptions,' and which was filed February 11, 1943."
The first partial bill of exceptions contains the general charge of the trial court but does not contain all the special charges given before argument.
After the rehearing the following docket entry of the Court of Appeals appears in the record under date of March 24, 1943:
"Under the evidence submitted upon rehearing the two-issue rule is not applicable and the giving of Section 6310-22, General Code, was prejudicially erroneous. In the absence of a complete bill of exceptions we are unable to determine whether there was any evidence relating to lights warranting a charge on Section 6310-1, General Code. Assuming that by reading Section 12603, General Code, to the jury and commenting thereon the trial judge charged on the assured clear distance ahead provision thereof we hold such charge was inapplicable under evidence. Judgment reversed and cause remanded. Exceptions. (See Journal)"
The following is the journal entry of the Court of Appeals under date of March 24, 1943:
"This cause coming on to be heard on rehearing, following the original appeal of this case by the plaintiff-appellant on questions of law from the judgment of the Common Pleas Court of Trumbull county, Ohio, in favor of the defendant-appellee, together with a transcript of the docket and journal entries of the Court of Common Pleas of Trumbull county, Ohio, and such original papers and transcripts thereof as were necessary for said appeal, and the original bill of exceptions, amendments thereto, and supplementary to the bill of exceptions as ordered by this court, the court finds that in the record and proceedings in the trial court there is error manifest upon the face of the record and proceedings prejudicial to the rights of the plaintiff-appellant entitling him to a reversal of the judgment below and a re-trial of said case, for the following reasons:
"Under the evidence submitted upon rehearing the two-issue rule is not applicable and the giving of Section 6310-22 of the General Code of Ohio was prejudicially erroneous.
"Judgment reversed and cause remanded. Exceptions.
"It is, therefore, ordered, adjudged and decreed by this court that the judgment and proceedings of said Court of Common Pleas in said case in favor of the defendant-appellee be, and the same are set aside, reversed and held for naught, that the plaintiff-appellant be restored to all things which he lost by reason of said judgment and that the plaintiff-appellant recover from the defendant-appellee his court costs incurred in securing such reversal taxed at $ . . . . . . ., and also recover the costs of the bill of exceptions together with the amendments thereto and supplementary to the bill of exceptions which is [are] taxed at $ . . . . ., and in default thereof that an execution issue therefor without further process. Cause remanded to trial court for further action according to law.
"Exceptions granted to the defendant-appellee."
The case is here following the allowance of a motion to certify the record.
Messrs. Sieman Sieman and Mr. Bert Whitman, for appellee.
Mr. G.H. Birrell and Messrs. Weimer Miller, for appellant.
The principal question in this case arises out of the filing in the Court of Appeals by the (there) plaintiff-appellant of a bill of exceptions containing only a part of the evidence adduced at the trial and the attempted diminution of the bill of exceptions for the purpose of picking out evidence which might justify the holding of the appellate court in reversing the judgment of the trial court.
A motion for diminution was made under Section 11572- a, General Code, which provides:
"When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction."
As stated in 3 American Jurisprudence, 283, Section 687: "A showing that warrants the amendment must be made." We are unable to discover from the record that any omission in the bill of exceptions occurred through accident or error.
No suggestion for diminution was made until the Court of Appeals had announced and docketed its decision in favor of plaintiff-appellant. In the plaintiff's motion for diminution it is baldly stated:
"The court reversed the judgment of the lower court in this case on the grounds that prejudicial and reversible error had been committed in charging the jury upon Section 6310-22 of the General Code of Ohio, which had no application to the facts in this case wherein both vehicles were proceeding upon the same highway. However, defendant filed an application for rehearing on the ground that the two-issue rule applied. The court granted said rehearing on the ground that the record, as it then stood, did not contain evidence showing that both the plaintiff and defendant had turned their vehicles from a straight course, and that it would be necessary for the record to so indicate in order for the court to reverse the lower court because of the giving of Section 6310-22 of the General Code of Ohio.
"It is for the purpose of supplying the court with this necessary testimony, which was brought out in the trial of the case but not transcribed by reason of econnomy, that the plaintiff now requests the court for a diminution of the record to have this essential matter now made a part of the partial bill of exceptions." (Italics ours.)
To put the stamp of approval on such procedure would result in endless confusion and a grave departure from orderly procedure.
As stated in 4 Corpus Juris Secundum, 1592, Section 1119 ( e):
"Very special and exceptional circumstances must be shown to obtain leave to have omissions and defects in the transcript or the return on appeal or writ of error supplied after a case has once been decided and while an application for a rehearing is pending, and in the absence of such showing an application to correct the record comes too late, at least where the application to amend is presented by appellant. Consequently, as a general rule it is too late to apply for a certiorari to correct the record after a cause has been decided, even on agreement of counsel, and a rehearing will not ordinarily be granted in order that a party may correct or perfect the record on certiorari, especially where no excuse is offered for a failure to make application before the former submission."
In 3 American Jurisprudence, 284, Section 691, it is said:
"The appellate court will not remand a bill of exceptions or the record to have added to it action taken in the trial court to meet an error assigned and argued before the appellate court and under advisement there."
As shown in the above statement of the case, the trial judge certified that the original bill of exceptions "contains only such testimony as is requested by plaintiff's counsel and is not a complete bill of all testimony."
The official court reporter's certificate, supra shows that with but one exception plaintiff's counsel requested only part of the testimony of any witness and omitted whatever charges before argument were given at the request of plaintiff. The one witness whose entire testimony was included in the bill was a weatherman, who testified only as to the condition of the weather. He did not witness the accident.
In the application for diminution of record, supra, it is stated:
"The reason the above matter was not originally contained in the partial bill of exceptions was that the plaintiff had no money with which to prepare a complete bill of exceptions and he still continues unable to prepare a complete bill of exceptions, but must furnish the additional requested matter above referred to in order that the court may intelligently consider this case on rehearing."
We find no such reason given in the trial court for not preparing a complete bill of exceptions. There was no affidavit filed in forma pauperis.
Assuming that the journal entry granting the motion for diminution of record was a sufficient direction to the trial court, still neither the motion for diminution of record nor the journal entry thereon contained any recitals or conclusion showing that any omission in the bill of exceptions had occurred through accident or error. On the contrary, the partial bill of exceptions shows on its face that it was deliberately prepared under specific instructions of counsel for plaintiff. Plaintiff-appellee in his brief in this court states that there were "a great number of witnesses" whose testimony was not included in the bill.
In addition to the foregoing defects the Supplementary to Bill of Exceptions filed March 16, 1942" contains no certificate of the trial judge. However, there is a certificate, as set forth in the above statement of facts, of the official court reporter. Counsel for appellee here contend that such certification is sufficient under Section 11571, General Code, which provides in part as follows:
"And provided, further, in cases tried, in courts of record that the certificate of the official court reporter attached to the transcript of the testimony shall be sufficient verification of the bill of exceptions and the signature of the judge shall not be necessary unless within ten days after notice to the adverse party of the filing of such bill of exceptions that said adverse party file objection or amendment to such bill, in which case the said bill shall be submitted to the court for settlement as hereinbefore provided." (Italics ours.)
Assuming that an order to the trial court for a diminution of record might be complied with under the foregoing provision of Section 11571, General Code, the record in the trial court fails to disclose any notice to the adverse party of the filing of such "Supplementary to Bill of Exceptions."
Not only was there no proper ground for sustaining the motion for diminution but even had there been, the "Supplementary to Bill of Exceptions lacked proper certification.
Therefore, it is our opinion that the Court of Appeals erred: (1) In granting the motion for diminution, and (2) in considering the "Supplementary to Bill of Exceptions" filed approximately eleven months after the original bill of exceptions.
While the Court of Appeals had before it in the original bill of exceptions the general charge of the court, it did not have before it, either in the original bill or supplementary, charges before argument given at the request of plaintiff or all of the evidence adduced at the trial.
The Court of Appeals held that "the giving of Section 6310-22 of the General Code of Ohio was prejudicially erroneous."
As stated in 2 Ohio Jurisprudence, 465, Section 407:
"It has been announced as a general rule that the reviewing court cannot consider error in the charge in the absence of a bill of exception showing all the evidence."
In the case of Hanauer Automobile Co. v. Evans, 12 C. C. (N.S.), 512, 21 C. D., 662, affirmed without opinion by this court in 86 Ohio St. 330, 99 N.E. 1126, it was held that:
"Where the evidence is not all set out in the bill of exceptions, a reviewing court cannot say that the portions of the charge to the jury which are complained of were not properly given."
Assuming that the present case presents an exception to the general rule and that there was sufficient record before the Court of Appeals upon which to base its decision in respect of the trial court's instruction on Section 6310-22, General Code, the judgment of the Court of Appeals should still be reversed for the reason that the trial court's charge in respect of such General Code section was specifically limited to the jury's consideration of whether defendant had violated that section. Such charge could not be prejudicial to the plaintiff (appellee here).
Section 11364, General Code, provides in the first sentence thereof:
"In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party." See, also, 2 Ohio Jurisprudence, 630, Section 583, and 770, Section 673; Mahoning Valley Ry. Co. v. Harnett, a Minor, 83 Ohio St. 480, 94 N.E. 1110.
As a court of record speaks only through its journal ( State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014), we will not comment on the docket entry of March 24, 1943.
For the reasons above stated the judgment of the Court of Appeals should be and hereby is reversed. Coming to render the judgment which the Court of Appeals should have rendered, the judgment of the trial court should be and hereby is affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and BELL, JJ., concur.
WILLIAMS, J., concurs in paragraphs three and five of the syllabus and in the judgment.