STEWARD v. BELT, 152 Ohio St. 399 (1949)

89 N.E.2d 572

No. 31799Supreme Court of Ohio.
Decided December 21, 1949.

Appeal — Probate Court rendered judgment on demurrer — No occasion for bill of exceptions — Appeal to Common Pleas Court not authorized — Section 10501-56, General Code.

Where the record of the Probate Court discloses that such court sustained plaintiff’s demurrer to the defendant’s answer and cross-petition, and, the defendant not desiring to plead further, such court thereupon rendered judgment for the plaintiff, there is no occasion for a bill of exceptions, and Section 10501-56, General Code, does not authorize any appeal by such defendant to the Common Pleas Court.

APPEAL from the Court of Appeals for Cuyahoga county.

This proceeding originated in the Probate Court of Cuyahoga County with the filing of plaintiff’s petition. Thereafter defendant filed an answer and cross-petition and plaintiff filed a demurrer thereto.

The following appears from the docket and journal entries of the Probate Court:

“February 9th, 1948. To court: On this 9th day of February, 1948, it being made to appear to the court that on December 19th, 1947, the plaintiff, Glenn H. Steward, filed a demurrer to the answer and cross-petition of Gertrude Betty Belt, executrix of the estate of Bertha E. Steward, deceased, on the ground that it appears on its face that it is insufficient in law and that the facts stated therein do not constitute a counterclaim or setoff and that the cross-petition does not state facts which entitle the defendants to the relief demanded, and the court having considered the said demurrer orders that the said demurrer be and it is hereby sustained, and thereupon the said defendants not desiring to amend the answer and cross-petition

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or to further plead in said action but refusing so to do, it is thereupon ordered and adjudged by the court that said answer and cross-petition of the defendants be and the same hereby is dismissed to which ruling, order, and judgment of the court the defendants by their counsel at the time excepted.

“The court further finds that the facts and allegations set forth in plaintiff’s petition are true and that the plaintiff is entitled to the relief prayed for therein, and that the plaintiff is entitled to elect to take the realty at 1140 Sylvania avenue, Cleveland Heights, Ohio, at the appraised value, to which ruling, judgment and finding of the court in sustaining the said demurrer and finding for plaintiff on his petition the defendants by their counsel at the time excepted.

“Thereupon, it is ordered, adjudged and decreed by the court that the plaintiff recover of the defendants their costs on defendants’ cross-petition to be taxed, for which judgment is hereby rendered, and further it is ordered, adjudged and decreed that plaintiff’s election to take said realty be and the same hereby is approved and the executrix is ordered to issue her deed to said plaintiff in accordance with law, to which ruling and judgment of the court the defendants at the time excepted.

“Defendants granted leave to plead further within ten (10) days.[*]

“February 13th, 1948. Motion for separate finding of facts and conclusions of law filed.

“February 19th, 1948. To court: On this 19th day of February, 1948, this cause came on to be heard on the motion of the defendant, Gertrude Betty Belt, for an order of the court to state separately, in writing, its finding of fact and conclusions of law in this action, to wit: With reference to demurrer and the ruling of

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the court sustaining the same heard on February 6th, 1948 and ruled, and the court having considered the said motion and being fully advised in the premises, orders that the said motion be and it is hereby refused.” (Emphasis ours.)

On February 27, 1948, defendant filed, in the Probate Court, notice of appeal to the Court of Common Pleas of Cuyahoga County.

In the Common Pleas Court plaintiff filed a motion to dismiss the appeal. That motion was granted and the appeal was dismissed.

The Court of Appeals reversed the judgment of the Common Pleas Court.

This court allowed plaintiff’s motion to certify.

Messrs. Klein Krause, for appellant.

Mr. Perry D. Caldwell, for appellees.

TAFT, J.

Section 10501-56, General Code, provides for an appeal on a question of law and fact from the Probate Court to the Court of Appeals. It provides also for an appeal on a question of law to the Court of Appeals from any final order, judgment or decree of the Probate Court. It then includes the following provision:

“If, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas, then an appeal on questions of law and fact may be taken to the Court of Common Pleas * * *.” (Emphasis ours.)

By the words “complete record * * * as provided by law in Courts of Common Pleas,” the General Assembly obviously had in mind the provisions of Section 11605 et seq., General Code. It intended to provide an appeal to the Common Pleas Court, only where a “record”

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had not been taken “so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas.”

Section 11607, General Code, provides:

“The record shall be made up from the petition, the process, return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court. If items of an account, or copies of papers attached to pleadings, are voluminous, the court may order the record to be made by abbreviating them or inserting a pertinent description thereof, or by omitting them entirely.”

Section 11608, General Code, provides:

“The bill of exceptions shall be filed with the pleadings and papers, but not recorded, unless the court for good reasons so orders. Evidence must not be recorded.”

No order was made in the instant case for abbreviating or inserting a pertinent description of any voluminous papers. It appears, therefore, that, so far as the requirements of Section 11607, General Code, are concerned, a complete record was prepared in the Probate Court.

The journal entries of the Probate Court clearly indicate that the Probate Court sustained plaintiff’s demurrer to defendant’s answer and cross-petition and that, defendant not desiring to plead further, the Probate Court thereupon rendered judgment on the pleadings for plaintiff. That being so, there would clearly be no occasion for a bill of exceptions to set forth any evidence received in the Probate Court. A bill of exceptions in this instance could disclose nothing which would be helpful to any reviewing court in determining whether the Probate Court erred in rendering the judgment for plaintiff.

In such an instance, to use the words of the statute,

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“a complete record may be prepared,” even though no bill of exceptions was or could be prepared. We do not have a situation where, to again use the words of the statute, “a record has not been taken * * * so that a bill of exceptions or a complete record may be prepared.” Only in such a situation has the General Assembly provided for an appeal to the Common Pleas Court.

The judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.

Judgment reversed.

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