IN RE ESTATE OF TYLER, 140 Ohio St. 333 (1942)

43 N.E.2d 265

IN RE ESTATE OF TYLER.

No. 28897Supreme Court of Ohio.
Decided July 29, 1942.

Supreme Court — Affirmance — No bill of exceptions — Court of Appeals overruled petition to reinstate dismissed appeal — Taxation — Determination of inheritance tax at lowest or highest possible rate — Section 5343-2, General Code.

APPEAL from the Court of Appeals of Cuyahoga county.

On July 31, 1939, on exceptions to the determination of the inheritance tax upon the succession under the last will and testament of Marion C. Tyler, the Probate Court of Cuyahoga county, by temporary order, assessed the tax at the lowest possible rate, under Section 5343-2, General Code, and included a direction that the executors or trustees deposit cash or specified bonds as security for the difference between the taxes computed at the highest and lowest possible rates. The Tax Commission moved to vacate that order, which motion was “refused” by the Probate Court on August 28, 1939.

On September 14, 1939, the commission filed a notice of appeal to the Court of Appeals from the judgment and ruling of August 28, 1939. After a transcript of docket and journal entries from the Probate Court was filed, the Court of Appeals on request of the Probate Court ordered on October 2, 1939, that the original files be returned to the Probate Court pending hearing on appeal. On November 9, 1939, the executors-trustees filed a motion to dismiss the appeal on the grounds that notice of appeal was not filed within 20 days after the order of the Probate Court on July 31, 1939, and no judgment was rendered by the Probate Court on August 28, 1939, from which appeal could be taken. The motion to dismiss was sustained by an entry of the Court of Appeals dated December 18, 1939, bearing the notation “No record.”

Page 334

Approximately fifteen months later, on September 16, 1941, the Department of Taxation filed in the Court of Appeals a petition to reinstate the appeal, in which it was alleged that at the hearing upon the motion to dismiss the appeal leave was granted appellant to correct the record with respect to the filing date of the judgment entry in the Probate Court; that the Department of Taxation was advised by letter dated August 7, 1939, that the entry of July 31, 1939, had been vacated and was not of record in the Probate Court; and that the Department of Taxation filed a motion for reargument and the probate judge advised the department that the original finding of the court overruling the exceptions would be entered as of August 28, 1939. An entry was journalized in the Probate Court on September 19, 1941, correcting the record by vacating the entry of July 31, 1939, by showing the filing of a motion for a rehearing and by showing an entry as of August 28, 1939, overruling the exceptions, “such entry being the entry originally entered by inadvertence on July 31, 1939.”

On September 29, 1941, the Court of Appeals” overruled” the petition to reinstate the appeal.

A motion to certify the record was allowed by this court and the cause was submitted upon a record, supplemental record and motion to affirm for want of a bill of exceptions.

Mr. Thomas J. Herbert, attorney general, Mr. Perry L. Graham
and Mr. W.H. Middleton, Jr., for appellant.

Messrs. Squire, Sanders Dempsey, Mr. Clan Crawford and Mr. Mark A. Loofbourrow, for appellees.

BY THE COURT.

During the oral argument of this case upon its merits counsel for appellees directed the attention of the court to the fact that the record contained

Page 335

no bill of exceptions. Leave was granted counsel for appellant to perfect the record. Subsequently a supplemental record was filed containing the motion to dismiss the appeal to the Court of Appeals, the petition to reinstate the appeal in that court, with exhibits consisting of correspondence, and another copy of the former transcript of docket and journal entries in the Court of Appeals. Thereafter counsel for appellees filed a motion to affirm the judgment entered by the Court of Appeals on September 29, 1941, on the ground that a bill of exceptions was necessary for a review.

As there is no bill of exceptions showing what was before the Court of Appeals in the way of evidence or admissions of counsel, this court is unable to determine the basis upon which the Court of Appeals refused to reinstate the appeal in that court.

The judgment of the Court of Appeals is affirmed

Judgment affirmed.

WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.