95 N.E.2d 267 | Ohio Ct. App. | 1950
This cause is submitted on motion of plaintiff-appellee to remand the bill of exceptions to the trial court for correction. The motion is made under Section 11572-a, General Code, which provides:
"When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction."
Under this section an omission in a bill of exceptions, which occurs through accident or error, may be corrected. The motion itself does not state that the omission occurred through accident or error. In a memorandum attached to the motion counsel for plaintiff claims that the bill of exceptions does not include a letter written by the defendant-appellant, and that the omission was due to the accident of not formally introducing the letter into evidence. Thus, it appears that the omission did not occur through accident or error in the preparation of the bill of exceptions but in the failure to introduce the letter into evidence as an exhibit at the trial. The plaintiff does not claim that the bill of exceptions fails to show the true facts as they transpired at the trial. Section 11572-a, General Code, permits an omission in a bill of exceptions to be corrected *370
only when the omission occurs through accident or error. Counsel for plaintiff in the instant case is seeking an order correcting the bill of exceptions by incorporating a letter as an exhibit which was never introduced at the trial. This is not permitted under the law. Elser v. Parke,
The motion in this case was made after the opinion was announced. The plaintiff's action was predicated on a contract which was not to be performed within one year, and the principal question involved was whether the different exhibits submitted, consisting of several memoranda, constituted a written instrument signed by the person sought to be charged. The letter which plaintiff wishes to make a part of the record is as follows:
"January 1, 1936
"Mrs. W. J. O'Leary
"Dear Mrs. O'Leary
"Please send receipt and return in address envelope.
"Thanking you, very truly,
We fail to see where this letter, if introduced, would strengthen the position of plaintiff. It is well settled that a motion to correct a bill of exceptions will be denied where the correction of the bill would not result in a different conclusion from the one announced. Ekleberry v. Sanford,
Motion overruled.
MILLER, P. J., HORNBECK and WISEMAN, JJ., concur. *371
