Unlike the cases of Glass v. Dryden (1969),
In his opinion, the trial judge appeared to justify his decision on Ms conclusion that a temporary decrease in market values as a result of an improvement is not entirely decisive of the question of lack of benefit, but that prospective benefits, whose impact had not yet been reflected in market values, should be considered. Yet it was implicit, in the view of the Court of Appeals, that “the trial court would not blindly accept such testimony of value as offered by the plaintiff.” The Court of Appeals weighed the evidence contained in the record of the proceedings in the trial court, and accepted the testimony of value, which it had the power to do under the authority of Sectiоn 2501.02, Revised Code.
In an appeal on questions of law only, where a Court of Appeals finds that the judgment under review is against the weight of the evidence (as distinguished from a finding that a judgment is unsupported by sufficient credible evidenсe) it is compelled by copious prior decisions of this court to remand the cause for a new trial irrespective of whether it is one in which a trial by jury is constitutionally protected (Candela v. New York Central System [1960],
On the other hand, even if the instant appeal had been prosecuted on questions of law only, and the Court of Appeals had found that the trial court erred solely in applying the law to facts about which there was absolutely no conflict in the evidence, the Court of Appeals would have been authorized to enter judgment for the plaintiff. Yeoman v. Lasley (1883),
We have referred to cases involving appeals on questions of law (formerly “error proceedings”) to emphasize, first, what this case is not; and, second, that no reported case has been discovered in which an intermediate appellate court in Ohio (whether a Court of Appeals or Circuit Court) has similarly disposed of an appeal on questions of law and fact (formerly “appeal”) after finding that the weight of the evidence required a judgment or decree contrary to that of the lower court.
Indeed, we find that the Court of Appeals, in effect, treated the instant appeal as one on questions of law, notwithstanding the plaintiff had met all the requirements for an appeal on questions of law and fact and, therеfore, had perfected its valuable right to a disposition of the appeal
Historically, the right to an appeal on questions of fact enjoyed constitutional protection (Kiriakis v. Fountas [1924],
The cause “no longer remains in the court below, the judgment of the сourt below is vacated and the whole case goes up for trial de novo. The appellate court has the same jurisdiction of the subject-matter of the action, of the pleadings, and the final determination of the case as the court below had.” Russell v. Fourth Natl. Bank (1921),
It is apparent that a significant number of Courts of Appeals have correctly understood this right and have given it vitality. See, for examрle, Oliver v. All-States Freight, Inc. (Ohio App. 1957),
Recently, Justice Matthias had occasion to observe thаt “the trial de novo as it previously existed no longer prevails in Ohio.” Humphrys v. Putnam (1961),
Bather, the observation by Justice Matthias had reference to the statutory amendments of 1955 (126 Ohio Laws 56) to Sections 2501.02 and 2505.21, Eevised Code, which appear in footnotes 1 and 2. Those enactments were probably actuated by the problems discussed in the case of Weiss v. Kearns (1963),
Admittedly, changes have occurred in the trial de novo. But the real issue is the significance and extent of the changes and their effect upon a case of this kind. It has been suggested that an appeal on the record, as here, is not the equivalent of a trial, and hence, a trial de novo is waived when the record is presented by an appellant in an appeal on questions of fact. Fugate v. Columbus (1963),
The premise of that unfortunate statement necessarily is that a trial is an event in which the witnesses personally appear and speak, and, a fortiori, a trial de novo is a second event where the witnesses personally reappear and reaffirm or respeak their previous testimony. The premise is false. “A trial is a judicial examination of the issues, whether of law or of fact, in an action or proceed
Although the G-eneral Assembly, in the exerсise of its plenary power over the jurisdiction of the Court of Appeals by virtue of former Section 6 of Article IV of the Constitution, removed from that conglomerate of rights comprising the appeal on questions of law and fact the right which permitted a party “to have a witness testify in the presence of the appellate court” (Union Trust Co. v. Lessovitz, supra,
We have no difficulty in construing those words as evincing an intention to preserve the jurisdiction of the Court of Appeals to render final judgment in accordance with the law and the evidence, not as granting that court the power merely to allow a motion for a new trial on the weight of the evidence whеre the trial court failed so to do.
Hence, the statutory changes of 1955 have placed the Courts of Appeals, in appropriate cases, in virtually the same position as they might have been “under the old English chancery practice [where] the evidence was required to be all reduced to writing, and the chancellor refused to
A trial in such form is no less a trial. Nor is it any less a trial because the court is required to read the record as if the witnesses are speaking with their own lips and determine the facts as if in the first instance. Whether a determination so made is more or less conducive to the truth is not an appropriate inquiry in this case. But see Blatt, “He Saw the Witnesses,” 38 Journal of American Judicature Society 86; Forkosch, Credibility Gap in Judicial Review of Administrative Determinations, 18 Clevelаnd-Marshall L. Rev. 257.
To summarize, plaintiff here had the right to an independent determination of the facts by the Court of Appeals, and to a final judgment in accordance with that determination. The defendant city, in turn, had a right to present its evidence in the Court of Common Pleas, which it failеd to do. It had a further right, in the interest of justice, to appeal to the discretion of the Court of Appeals to present its evidence for the first time in that court “in the manner and form prescribed” by that court, which right it failed to assert or claim. It had a right to one trial, and one triаl de novo. See In re Receivership of Wisser & Gabler, supra (
The Court of Appeals was without power to order a third trial in the lower court or to appoint the Court of Common Pleas as its master commissioner. Under the circumstances, the Court of Appeals had power only to еnter final judgment for the plaintiff in accordance with its findings, which we herewith direct it to do.
Judgment reversed.
Notes
Section 2501.02, Revised Code, provides, in part:
“. . . In addition to the original jurisdiction conferred by Section 6 of Article IV, Ohio Constitution, the court [of Appeals] shall have jurisdiction:
“Upon an appeal upon questions of law to review, affirm, modify, set aside or reverse judgments or final orders of courts of record inferior to the Court of Appeals within the district, including the finding, order or judgment of a Juvenile Court that a child is delinquent, neglected or dependent, for prejudicial error committed by such lower court;
“Upon an appeal on questions of law and fact the Court of Appeals, in cases arising in courts of record inferior to the Court of Appeals within the district, shall weigh the evidence and render such judgment or decree as thе trial court could and should have rendered upon the original trial of the case, in the following classes of actions, seeking as a primary and paramount relief:
“(10) Injunction, accounting, subrogation, or interpleader.
“In all cases not falling within the classes designated above the Court of Appeals shall have jurisdiction to proceed as in an appeal on questions of law only. . . .” (Emphasis supplied.) All of the foregoing, except the first paragraph, was added in 126 Ohio Laws 50.
Section 2605.21, Revised Code, provides, in part:
“An appeal taken on questions of law and fact entitles the party to a hearing and determination of the facts de novo which shall beupon the same or amended pleadings. The court shall review the final order, judgment or decree upon such part of the record made in the trial court as any party may present to the court and such additional evidence as upon application in the interest of justicе the court may authorize to be taken, such evidence to be presented in the manner and form prescribed by the court.” (New material added in 126 Ohio Laws 66, 58, emphasized.)
In that case, at page 419, appears the following enlightening comment by Judge Jones:
“. . . There are many reasons why an appellant might desire his сase presented and heard de novo. He may want to procure additional testimony ... by the filing of depositions in the appellate court. He may desire to file amended pleadings or to make new parties in the appealed suit . . . neither of which could be done in the submission of his case on error, where the parties are confined to the record made in the trial court, which can neither be amended nor supplemented.”