Opinion
No. 31776
Decided December 14, 1949.
Agreed case — Section 11421-4, General Code — Submission of controversy with reservation for oral evidence by parties — Appeal to Court of Appeals and motion to dismiss appeal — Court may take testimony to determine whether right to appeal waived — Court's determination final.
Where a submission under Section 11421-4, General Code, is made partly in writing with the reservation that additional oral evidence by parties is to be submitted and no mention is made in writing in respect of appeal, upon appeal to the Court of Appeals where a motion to dismiss is made, the court has the power to take testimony to determine whether the parties waived their rights to appeal. The court's determination upon such fact is final.
APPEAL from the Court of Appeals for Portage county.
On June 18, 1947, appellant, as plaintiff in the trial court, filed a petition asking for an order requiring appellee Di Egidio to make an accounting and directing that the property be sold and the assets be distributed among the parties according to their respective interests and for such other and further relief as may be proper.
On the same day Di Egidio and D'Amato, as defendants, filed their answer and cross-petition. On June 27, 1947, plaintiff filed his reply to the answer and his answer to the cross-petition.
The three parties, Jaffrin, Di Egidio and D'Amato, filed an affidavit in the trial court stating that a controversy existed between them as to the legal effect of certain agreed facts and that this procedure was in good faith to have their rights determined with respect to such facts; and requesting the court to render judgment thereon in favor of the parties legally entitled thereto in accordance with the provisions of Section 11421-4, General Code, and to determine the interests and rights of the parties in the above action.
After reciting the agreed facts, the affidavit continued:
"Affiants further admit that all of the parties hereto have some interest in this project, but that the parties themselves have been unable to compromise the differences which have arisen, and therefore are hereby requesting this court to determine the equitable rights of the parties concerned.
"It is further understood and agreed between the parties hereto that they will themselves take the stand and testify for the benefit of the court on all other facts and issues."
Both the printed record and the original papers show that on September 5, 1947, a motion to set aside and vacate the final order and judgment rendered on July 14, 1947, and for a new trial was filed. We are unable to locate either in the printed record or among the original papers a final order and judgment of July 14, 1947. The trial court's transcript of the docket and journal entries does not show any final order or judgment of July 14, 1947. The transcript of docket and journal entries does show that on September 5, 1947, a motion for new trial was filed and that on September 10, 1947, plaintiff was granted judgment; that on September 10, 1947, the court entered a final order. On September 29, notice of appeal, appeal bond, praecipe and transcript of the docket and journal entries were filed. On January 14, 1948, a motion to dismiss the appeal was filed in the Court of Appeals. On April 12, 1948, the Court of Appeals found:
"This matter came on for hearing the 19th day of February, 1948, upon the motion of the appellees to dismiss the appeal from the Common Pleas Court to this court. The court having heard arguments of counsel for appellant and appellees and reading the briefs submitted by the parties, finds that the case in issue requires no motion for new trial in the lower court or a bill of exceptions to perfect an appeal to this court. That the necessary and proper procedure has been followed to enable this court to hear the case de novo.
"Wherefore, it is hereby ordered that the motion to dismiss the appeal is overruled and the case continued for hearing on its merits, to which ruling on the motion the appellees except."
The transcript of docket and journal entries by the Court of Appeals also shows that on June 18, 1948:
"The parties to this action not being entitled to a jury trial, on oral motion of appellant and appellees this action is referred to Albert Caris, attorney at law, who is hereby appointed special master commissioner for the purpose of taking testimony in the above entitled case, reducing it in writing and reporting it to this court."
On August 24, the transcript of testimony before the master commissioner was filed. On October 21, a motion to reconsider motion to dismiss appeal was filed. The motion to dismiss the appeal was overruled on December 21. On March 18, 1949, a motion to dismiss the appeal on grounds that the finding and judgment of Common Pleas Court were conclusive under Section 11421-4, General Code, was overruled, to which appellees excepted.
On March 18, 1949, "motion by appellees for reconsideration of former motion to dismiss appeal heard and reconsideration granted. Upon reconsideration the entry of September 13, 1948, is set aside and held for naught and upon further consideration of the original motion to dismiss appeal the same is sustained and the appeal dismissed. Exceptions. This judgment is rendered as of November 17, 1948. Appellant excepts."
The transcript of docket and journal entries makes no mention of the Court of Appeals' entry of September 13, 1948. The original motion to dismiss the appeal was filed on January 14, 1948, in the Court of Appeals. We find no entry of September 13, 1948.
Judge Blake C. Cook, the trial judge, was called before the special master commissioner appointed by the Court of Appeals and he was asked the following question:
"Q. I would like to call your attention Judge to the opening of the trial, and the statements made by counsel —
"Objected to.
"By Judge Kerr: You have just ruled the record out. This was an agreement made in open court previous to the stenographer being in the courtroom.
"By Court: What was the nature of the conversation, if you don't mind telling me?
"By Mr. Summers: Object to any statement by Mr. Kerr to you.
"By Court: The statement of Mr. Kerr will not be evidence in any event.
"By Mr. Summers: I object to it getting into the record.
"By Court: I will hear his statement as to what he expects to show by this evidence.
"By Judge Kerr: I expect to show, your Honor, at the opening of the trial, a statement was made to Judge Cook when he raised the question about a stenographer, in the presence of the parties in the courtroom, by both counsel, that in our opinion a stenographer would not be necessary in the case. That the parties had agreed and did agree then and there in the courtroom, to submit to Judge Cook their entire controversy and be bound by his decision.
"By Court: On that basis I think I will have to rule the testimony out, for this reason, I don't think you could confer jurisdiction by agreement of parties. You, in effect, appointed Judge Cook your arbitrator to arbitrate a matter, for that reason I don't believe, and perhaps some others which I am not going to take time to explain, the testimony here would be incompetent. You are now trying the case anew in the Court of Appeals, however you conferred jurisdiction in the court below, is unnecessary here.
* * * *
"By Judge Kerr: I would like to proffer Judge Cook's statement as to what his memory is in regard to those facts.
"By Court: You have the right to make the proffer.
"By Judge Kerr: Judge Cook, will you be kind enough to tell us what your memory is with regard to the understanding and agreement that was made at the time of the opening of the trial? A. I asked counsel at that time, if they desired a stenographer, and one of counsel, I am not sure which — whether it was Judge Kerr or Mr. Nash arose in court and stated that they did not desire a stenographer, because they were going to offer evidence to me in carrying out an agreement they had made in chambers before the action was started, that the controversy was to be in effect, submitted to me as arbitrator, and they — and that both sides agreed to be bound by my decision."
On cross-examination of Judge Cook the following was developed:
"Q. Judge, did you proceed and try this case according to the laws of the State of Ohio? * * * A. Judge Caris, I admit that.
"By Mr. Summers: You proceeded in the regular course of your judicial position to try this as Common Pleas Court of Portage county? A. Yes, I did, in conformity with the plan I had suggested to counsel for plaintiff and defendant and to which they agreed.
"By Judge Kerr: They agreed to submit all of their controversies to you at that time? A. Yes."
Judge Kerr asked Quinty Di Egidio the following question:
"Tell me whether or not at the opening of the former trial in this case, before Judge Cook in this court, in this courtroom, a joint statement was made between Mr. Nash and myself to the court, in the presence of yourself and Mike to the effect that a stenographer would not be necessary, because you had both bound yourselves to accept the judgment of the court?" The proffered answer was: "That's true."
The transcript of the testimony taken at the trial in the Common Pleas Court was proffered after the objection by plaintiff was sustained.
The case is in this court pursuant to the allowance of a motion to certify the record.
Mr. S.L. Summers, Mr. William J. Smith and Mr. Frank Leonetti, for appellant.
Mr. George Kerr, for appellees.
While a large record was filed in this case there is but one question before us and that is: Did the Court of Appeals err in sustaining the motion to dismiss the appeal?
Section 11421-4, General Code, reads as follows:
"Parties to a question which might be the subject of a civil action, on filing an affidavit that the controversy is real and the proceeding in good faith to determine their rights, may agree upon a case containing the facts upon which the controversy depends, and present a submission of it to any court of competent jurisdiction, which shall hear and determine the case, and render judgment as if an action were pending."
Section 11421-5, General Code, provides:
"The case, the submission, and the judgment, shall constitute the record."
Section 11421-6, General Code, provides:
"The judgment shall be with costs, may be enforced, and shall be subject to reversal, in like manner, as if it has been rendered in an action, unless otherwise provided in the submission."
Under the procedure followed by the parties, it became a question of fact whether the case was subject to reversal. In the opening of the hearing before the special master commissioner appointed by the Court of Appeals, the following took place:
"By Mr. Caris: This hearing is before me as special master commissioner appointed by the Court of Appeals of this district. The entry, gentlemen, as I understand it simply means I shall take the testimony and report to the court without in any wise making a recommendation as to what the court shall find on the evidence. Is that agreed?
"By Mr. Summers: That is agreed, your Honor.
"By Judge Kerr: Yes."
The submission being ambiguous, the parties had a right to explain that submission by oral testimony.
In 2 American Jurisprudence, 375, Section 13, it is said:
"In case a review in an appellate court is contemplated, it is customary for the parties to state in the agreed case that a right to appeal or to sue out writ of error is reserved to each party."
While the special master commissioner sustained objections to the offering of testimony in this regard, proffers were made and such testimony was before the Court of Appeals which decided the fact.
While we are not favored with an opinion by the Court of Appeals it is our duty to assume that such court acted in accordance with law unless the record shows the contrary.
As stated in 2 Ohio Jurisprudence (App. Rev., Pt. 2), 1015, Section 565:
"No rule with relation to Ohio appellate courts is better settled than the fundamental principle that in appeals on questions of law, all reasonable presumptions consistent with the record will be indulged in favor of the validity of the judgment or decision under review, and of the regularity and legality of the proceedings below. This is in accordance with the old maxim * * * (all things are presumed correctly and with due formality to have been done until it is proved to the contrary)."
This court does not pass upon facts or weight of evidence but accepts the facts and weight of evidence as found by the lower court. Section 12223-31, General Code; State, ex rel. Kobelt, v. Baker et al., Trustees, 137 Ohio St. 337, 29 N.E.2d 960.
The Court of Appeals having appointed a special master commissioner for the purpose of taking testimony, reducing it to writing and reporting it to the court, such special master commissioner having performed his duty as directed, and the court having sustained appellees' motion to dismiss the appeal, and having dismissed such appeal, the judgment of the Court of Appeals should be and hereby is affirmed.
Judgment affirmed.
MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.
Dissents on the ground that this case does not come within the provisions of Section 11421-4, General Code, which are applicable when the parties "agree upon a case containing the facts upon which the controversy depends."
In the instant case the parties not only do not agree on the facts but they expressly reserve the right to "take the stand and testify for the benefit of the court on all other facts and issues."