No. 854 | Ohio Ct. App. | Dec 19, 1923
Epitomized Opinion
Published Only in Ohio Law Abstract
Original action in the Common Pleas of Summit County to recover damages for alleged malicious prosecution, wherein Alex Karacsony was plaintiff and Loza Stokich was defendant. After the petition and answer had been filed, but before trial, plaintiff, declaring that he was a minor, under 18 years of age, made application to the court for leave to file an amended petition by his next friend. The journal showed that a motion for that purpose was filed, heard and submitted to the court and that it “dismissed said cause of action without prejudice, Exceptions.” Karac-sony brought error proceedings to the Court of Appeals and Stokich filed a motion to prosecute the action. Held:
1. As the filing of a petition in error is the bringing of a new action, and as the statute requiring suits of minors to be brought by next friend applies to error proceedings, the motion to dismiss will have to be granted.
There is another reason why relief cannot be granted. No bill of exceptions was taken at the hearing of the motion filed by plaintiff .in the court below. Hence this court is confined to the record as it is. Said motion, though in files, is not a part of the record, but its import is contained in the journal entry respecting it. There is in the files an affidavit in support of the motion, but that is not a part of the record and could become so only by being embodied in a bil\ of exceptions and it is only by a bill of exceptions that this court could know that such affidavit was the only evidence before the- court on the hearing of the motion. This court then is without any knowledge as to why the judgment of dismissal was entered by the court, and it is presumed that the court’s action was justified. Motion to dismiss-petition in error granted.