*1 рermit appeals referring from boards further amendment to After to the report commissions the concludes: foregoing, Coun- “To summarize the recommendations the Judicial cil are IV The Counсil the amendment Article “1. recommends Assembly originally Constitution to return to General provide appellate Appeals jurisdiction law of the Courts of had to throughout the state. jurisdiction appellate that the “2. The Council recommends of the Courts enlarged Appeals permit boards, appeals further from such orders of commissions, Legislature may, discretion, officers or cоurts as the in its permit.” report by Overmyer Judge aIn the late Arthur W. on behalf of the Ju- April 12, 1943, Judge Overmyer dicial Council to Ohio Bar Association on proposal IV, “the states: advocates the amendment of Article Section 6 Assembly right Constitution return to the General to determine the appellate (Italics jurisdiction Appeals supplied.) of the Courts of Ohio.” Appellant.*
Brewer, Appellee, Brеwer, certify *Motion to overruled, the record Appeal March 1963. dis- missed, St., 174 317. 1962.)
(No. 259—Decided June *2 Young for appellee. Jones, & Messrs. Messrs. Bay, Hopkins for
Hopkins Jr., and Mr. Scott H. & appellant. plaintiff 1961, 3, June J. On Hildebrant, Pleas of in the Court Common entered a divorce action was entry overruling July County. dеfend- 6, 1961, On
of Warren July de- 1961, 15, On trial was entered. motion for new ant’s questions fact. of On law appeal filed notice of fendant hearing, appeal reduced the court, after 4, 1961, November only, grаnted questions not to appellant of law one on to thirty days exceptions. file bill of within which to exceed may judge only excep- allow a bill of trial settle The tions. filed bill of was exceрtions 1961, 4, December
On certified and, 27, on December was 1961, attached with exhibits by as an incomplete par- and allowed correct only. of bill tial by way May of to the bill amendments addition 2,1962,
On sought to filed with the clerk. were amend to appellant’s court has before now motion The a full complete additional matter to bill of and allow of the record. in diminution thirty days 1961, after reduced December this court
On questions appellant filed with to one on appeal entry by to vacate” which was overruled trial court “motion sought January motion, Incident appellant 11, 1962. identical аmendment and the trial court the addition to the from by sought motion here. filed In a decision herein with clerk on Decem- written vacate, court dismissed the trial motion to re- 1961, the ber or addition to the amendment bill of exceptions, to permit fused deciding. the court In part, for so its reasons set forth said: Hisey pre- have previously and Mrs. Anderson “Both Mrs. undersigned, and surveillance under the transcripts
pаred attorneys, and the suggestions his notes, with containing all the proceedings, and the records *3 only authority respecting Appeals in the Court of “1. The is set forth exceptions a bill of of an addition to or modification 2321.14, in Revised Code. Section only may judge a and allow bill of ex- settle
“2. The trial settled and al- has been and bill of exceptions where no ceptions by by the is no basis for correction trial there lowed the authority 2321.14, Revised under Section of Appeals Court Code. may only in a correct omissions Appeals
“3. The Court of occurring through error and accident or where judge by the bill that was not notice put counsel was complete, through that the omission occurred he cannot claim * * *” accident or error. body Hornbeck, J., states: the opinion, In thе exceptions, partial a “2. If there were only in the bill acci- correct omissions could dent or error. by put is that counsel was on notice It obvious was not complete that the bill therefore, trial say through we could not omission occurred accident .error,”
266 Corp., Law 88 Ohio Machine
In White-Roth Zimmerman v. the headnotes read Abs., 277, did not have court reporter that the
“1. The fact official complеte business to other press sufficient time because filing statutory such period for a bill of within occurring through accident or error with- bill is in the an omission not meaning is 2321.14, Code, Revised not of Section grounds remаnding or completion. it for for correction allowing statutory authority an ex- for
“2. There no tension of time to file a bill exceptions.”
At it is page stated: 279 recognize is a Code,
“We
that Section
Kovachy
State,
Piletich,
al.,
remedial
et
statute,
ex rel.
Judges,
request
give
is not
but the
herein
St., 298;
Ohio
а
the statute
liberal
rather it is that we extend
construction,
of the statute.
purpose
do
a
a
“We
not have
situation where
certified as
in fact
complete bill, but which
is not a completе
bill;
the instant case the bill is
as a
certified
bill,
the appellant wishes to
the bill
complete
after the time fixed
by
statutory authority
allowing
statute. There is no
for
an ex-
tension of time
to file bill of
in the triаl court re-
gardless
assigned.
(2d),
reason
Jurisprudence
Appellate Review,
and authorities cited. There is
(Section
Code),
a provision in the statute
2321.10,Revised
ex-
tending
judge may sign
within
time
which the the bill.
Legislature
problem
in this case is
one
not
although may
court, and
appear
harsh rule,
arewe
bound
the statute as it now exists.”
In its motion filed April 9, 1962, appellant asks the to amend
authority
the bill of exceptions under
2505.44, Revised Code. The word “transcript”
used in that
chapter and, specifically,
giv-
in Section 2505.08,Revised ing
right
either
party
to apply to the court to order a tran-
only
script not filed in timе, refers
to the transcript of docket
journal
entries, not to a transcript of
or bill of
*4
In
exceptions.
v. Utacht,
Sorrell
“The word ‘transcript’ used in the last sentence of Sec- 2505.08, tion Revised Code, providing that if the transcript not filed papers are within time may either party the apply to the case docketed is taken to have appeal which the transcript them refers to filed, shall order and the court jоurnal not refer to the tran- does entries, the docket or bill of exceptions.” script lodges simply Revised 2505.44, Code, Section such compel transcript. court to Code, therefore, that Sеction appears
It, authority which this court could no basis or provides add of exceptions. amend or syl- In it is stated in the Parke, St., 261, Elser v. labus : may
“1. an appellate Before remand a bill ex- ceptions to trial court for upon application correction made showing under General 11572-a, must made through that an in such bill omission occurred accident or error. “2. Where the application for diminution of a bill of ex- ceptions states that it is made after the court had appellate granted rehearing and for the purpose of supplying ap- grounds reversing pеllate court with granting of such application is erroneous.” From careful examination of the record we find no omission in the bill of exceptions accident or error. court is, therefore, This without the power of corrective action the motion overruled.
Motion overruled. Long, P. J., J., Keene, concur.
(Decided August 1962.) theOn merits. J. This appeal, heretofore reduced to one on Hildebrant, questions awarding alimony from decree and mak-
ing a division of property between the parties. The decree reads in part:
“This cause came to be heard upon plaintiff’s amended petition, defendant’s amеnded answer and cross petition, plain- tiff ’s reply, being and the parties evidence, both present in open * ** court and represented counsel. The court further finds allegation from the evidence of plaintiff’s amended charging gross petition neglect duty defendant with is true, *5 268
and that is entitled to as for in alimony her plaintiff prayed defendant is denied a divorce his The amended petition. is сross because he himself of a di- guilty ground petition vorce.”
Defendant contends that strenuously was without to make a jurisdiction or division of in suit property for alimony only.
That contention is complеtely disposed Supreme Griste, the case of Griste in St., Court which 160, in states one and of the two as syllabus paragraphs “1. Under the provisions
in matter domestic any concerning relations, the court shаll not its full be deemed to equity juris- deprived powers diction.
“2. The exercise of the full equity and jurisdiction powers in an divorce action alimony or includes the authority to deter- mine the of the to and a rights alimony division of parties * * *” property. this June court overruled
On motion appellant’s to remand the bill of for additions and corrections, stated in its for the reasons written opinion.
The bill befоre this is certified to by being only partial incomplete transcript taken at the trial. contention is that is judgment Appellant’s principal weight the manifest of the evidence. is against Citation deеmed in the that, to state absence of unnecessary certificate that the all contains there evidence, presump- sufficient evidence to sustain tion that there was the judgment. The being insuffiсient incomplete assignments the other error, to exhibit reviewing does “that required the lower court law, presume within the the decree or wholly judgment acted was that the court grounds, below the lаw made applied upon proper its justified.” and that action was correctly, Ohio Jurispru- 715. dence (2d), is affirmed and the cause remanded for fur- according law.
ther proceedings
Judgment affirmed. Keefe, J., conсur. J., P. Long, notes reporters authenti- always an available, been are, and have records which available now be and would been would have complete cated, bill requirement statutоry therefore payment if to defendant had been met.” regularity indulge a presumption court is bound to This validity trial court. action of the to the modify a only authority add or has to this court in Section is sеt forth as follows: requires an justice all parties, notice to it, “When accident exceptions, in a omission error, may reviewing may or it be re- be corrected such correction.” the trial court for manded to Swearingen, Corporation Finance In Welfare in the headnotes: Abs., it is stated Law