Jones v. Icenhower, No. 258

No. 258 | Ohio Ct. App. | Oct 25, 1945

OPINION

By HORNBECK, P. J.

This is an appeal from a judgment of the trial court on an accounting between the parties wherein the court found and entered judgment for the plaintiff as to a certain diamond ring in the possession of the defendant and a certain diamond stick pin sold by the defendant for the sum of $450.00, which were pledged in the name of Perrill Jones and a finding that the defendant is indebted to the plaintiff in the sum of $183.00. Upon issue joined as to the diamond tie pin which was pledged in the name of Henry Jones the court found for the defendant. It was ordered that defendant deliver to the plaintiff the diamond ring in the defendant’s possession and that plaintiff recover from defendant the sum of $183.00 and costs for which judgment was entered with costs.

The claim of the plaintiff was that the defendant held certain articles, namely, three diamonds, two of' which were set in tie pins and one set in a ring as a pledge to secure $583.-24 which it was claimed defendant had advanced to the plaintiff on tfie security of said diamonds. Tender of the amount advanced together with interest was plead and admitted and defendant generally denied the other averments of the petition. The parties went to trial on the issues joined, plaintiff insisting on the claim as set up in the petition and defendant claiming that the diamonds were transferred to him for the amount of money which it was necessary to advance to redeem the articles from pawn shops where they had been pledged. The trial judge found as heretofore indicated.

The appeal is noted as upon questions of law and fact but in this court'the evidence is proffered by way of a bill of exceptions and counsel have argued their respective cases as upon questions of law only. The appellee asserts in his brief that there is no support for the order and judgment against the plaintiff as to one of the diamonds. We consider this case as upon questions of law only, and, therefore, cannot reach the error suggested by appellee because there is no cross-appeal.

There is but one error of substance assigned by appellant, namely, that the order and judgment are not supported by and are contrary to the manifest weight of the evidence. There ■¡is support in this record for the judgment on behalf of the -.plaintiff which the trial court entered. The evidence was in .dispute-, but the trial judge having the right to weigh it and determine the credibility of the witnesses and probability of statements entered judgment accordingly. We cannot find that his judgment is so manifestly against the weight of the evidence as to require its reversal. There is no dispute as to any question of law involved and controlling on the issues joined.

The judgment will be affirmed.

MILLER, J„ and MONTGOMERY, J„ concur.