Opinion
No. 32738
Decided March 5, 1952.
Appeal — Dismissal — No bill of exceptions — Mandamus to require trial judge to vacate judgment — Bill of exceptions necessary.
APPEAL from the Court of Appeals for Cuyahoga county.
This proceeding in mandamus originated in the Court of Appeals.
It may be gleaned from the petition and the answer that one John Schneider, as administrator of the estate of his wife, Anna, instituted an action against one Lentzen to establish a trust, upon a certain parcel of real property, for the benefit of the heirs of the estate.
During the pendency of that action the administrator died and his son, Frank Schneider, relator in the instant case, applied for letters of administration de bonis non of the estate of Anna Schneider. An action in mandamus to require the Probate Court to appoint Frank Schneider as such administrator is now pending.
Lentzen, defendant in the then pending action to establish the trust, instituted an action against Frank Schneider, as administrator of the estate of John Schneider, and others to quiet title to the real estate involved in the action to establish the trust, and thereafter filed a motion to consolidate the two actions.
The cases were ordered consolidated by the Court of Common Pleas, and as consolidated were assigned for trial to the respondent herein, a judge of that court. At the trial, respondent dismissed the petition in the action to establish the trust, found for plaintiff in the action to quiet title, and entered judgment accordingly.
The relator in the case at bar seeks a writ of mandamus directing the respondent to vacate and set aside the judgment entered by him in the consolidated case and ordering that the case "be held for trial and final determination until the appointment of a fiduciary who can be substituted as party plaintiff in said cause."
The judgment entry of the Court of Appeals reads as follows:
"This cause came on for hearing upon the petition of the plaintiff heretofore filed in this court, for writ of mandamus against the defendant herein, together with the answer of defendant.
"This cause herein was submitted upon the pleadings of the parties, the exhibits offered by defendant and allowed by the court and the briefs heretofore filed by the parties herein and was duly argued by counsel for both parties in court.
"Upon consideration thereof the court finds that the defendant was duly served with the petition heretofore filed and summons thereon, and that the plaintiff is not entitled to a writ of mandamus as prayed for against the defendant, Edward Blythin, judge of the Court of Common Pleas of the County of Cuyahoga, Ohio, for the reason that there being no clear right to the order prayed for, this court being without jurisdiction to compel the Common Pleas Court to exercise its discretion, the relator's right being by appeal, which right he has already exercised.
"It is therefore ordered, adjudged and decreed that the petition of the plaintiff herein be dismissed and judgment is hereby rendered for the defendant and plaintiff is hereby ordered to pay the costs of this proceeding, for which judgment is hereby rendered and execution may issue thereon."
The cause is in this court on appeal as of right.
Messrs. Woodle Wachtel, for appellant.
Mr. Paul Mancino, for appellee.
The respondent has filed a motion to dismiss the appeal for the reason that no record or bill of exceptions has been filed or allowed by the Court of Appeals wherein the cause was originally tried.
There being no bill of exceptions exemplifying the facts necessary for a consideration and determination by this court of the issues presented by appellant, the appeal is dismissed. Black et al., Exrs., v. Wolfe, Aud., 141 Ohio St. 465, 48 N.E.2d 897; Veres v. Molnar, 146 Ohio St. 16, 63 N.E.2d 678.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.