49 N.E.2d 950 | Ohio | 1943
Inasmuch as a court of record in rendering a judgment speaks through its journal alone, it should be observed the Court of Appeals based its reversal on the single finding "that in its opinion substantial justice has not been done the party complaining."
The sole question requiring consideration by this court is the jurisdiction of the Court of Appeals on an appeal on questions of law to substitute its judgment for that of the trial court as to the amount of an allowance for an unliquidated claim for counsel fees.
It is the contention of the appellant that under these circumstances the jurisdiction of the Court of Appeals was limited to the alternatives of requiring a remittitur or reversing the judgment and remanding the cause for a retrial. Reliance is placed upon the decision of this court in the case of Chester Park Co. v. Schulte, Admr.,
"In an action for unliquidated damages neither the trial court nor any reviewing court has the power to reduce the verdict of a jury or to render judgment for a lesser amount without the consent of the party in whose favor the verdict was rendered to such reduction."
The appellees seek to distinguish that case from the instant one by pointing out that in that case there was a trial by jury but in this one there was not. However, the fundamental and decisive principle here involved is that under the provisions of Section
The Court of Appeals was in error, and its judgment must be reversed and that of the Court of Probate affirmed.
Judgment reversed.
MATTHIAS, HART, ZIMMERMAN, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.