Opinion
No. 37079
Decided December 13, 1961.
Bill of exceptions — Duty of trial court to correct and sign — Finding of facts not questioned — Alleged error in conclusion of law — Mandamus to require trial judge to sign, denied.
APPEAL from the Court of Appeals for Cuyahoga County.
This action in mandamus was instituted in the Court of Appeals to compel the respondent, judge of a Court of Common Pleas, to correct and sign a narrative bill of exceptions.
The petition alleges, inter alia, that a certain action was tried before respondent; that respondent wrote an opinion, made a finding of facts and conclusions of law, and "entered a verdict for the defendants"; that a motion for new trial was filed and overruled and judgment entered for defendants; that notice of appeal was duly filed; that a narrative form of bill of exceptions, including the exhibits, was prepared by relators, filed with the clerk, and transmitted to the respondent as trial judge before whom the cause was heard; and that the respondent refused to sign the bill for the reason that after the lapse of time of several months he was unable to go beyond the transcript of the court reporter. The prayer of the petition is for a writ ordering respondent to sign the bill.
Relators have filed a reply to the answer of respondent, in which they allege that "they have filed no objection or motions relating to the introduction of evidence, and to the rulings made by the trial court during the course of the trial, nor is any objection raised to the finding of facts. The sole error complained of by the relators pertains to the conclusions of law arrived at by the trial court, and to his verdict and judgment in the case, to which the relators have taken their exception in the form of a motion for new trial."
The Court of Appeals issued a writ ordering the respondent to allow and sign the bill of exceptions presented or to proceed to correct the bill, if incorrect, and as corrected to allow and sign the same.
An appeal as of right brings the cause to this court for review.
Mr. David A. Thomas, for appellees.
Mr. John T. Corrigan, prosecuting attorney, Mr. A.M. Braun and Mr. John L. Dowling, for appellant.
Relators state in their reply that they have no exceptions to any rulings of the trial court during the course of the trial and that they raise no objection to the trial court's finding of facts, but allege that the "sole error complained of" pertains to the conclusions of law. It is clear from the allegations of that reply that any alleged errors would appear on the face of the record aliunde a bill of exceptions.
Thus, relators have judicially admitted (see Gerrick v. Gorsuch, Treas., 172 Ohio St. 417) no need for a bill of exceptions for a review of any error. Therefore, to require the production of such a bill would be to compel the doing of a vain thing.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
ZIMMERMAN, acting C.J., YOUNGER, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.
YOUNGER, J., of the Third Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J.