BILL OF EXCEPTIONS.

[Cuyahoga Circuit Court,

January Term, 1892.]

Upson, Caldwell and Baldwin, JJ.

#### †FRANK A. COMBES v. ALVA C. MILLER.

To Review ParTicurar Defense, Birr must Contain arr Evidence in the Case.

There can be no review on the weight of evidence on a particular defense, if the bill of exceptions merely contains all the evidence on such defense, but not all the evidence in the case.

Error to the Court of Common -Pleas of Cuyahoga county.

†

The judgment in this case was affirmed by the supreme court without report, 52 O. S. 674.

UPSON, C. J.

This is a proceeding in error to reverse the judgment of the court of common. pleas, rendered against Frank A. Combes, in an action brought against him by Alva C. Miller, to recover damages sustained by reason of an unsatisfactory answer made by Combes as garnishee in the case of Miller against Sawtell.

The ground upon which plaintiff in error seeks to reverse this judgment, is that the decision of the court below is not sustained by sufficient evidence. The defendant below made a motion for a new trial on that ground, and it was overruled.

The bill of exceptions does not contain all the evidence given on the trial, but it' purports to contain, and probably does contain, all the evidence that was given upon those points the counsel desired to make in these proceedings.

In the case of Ide v. Churchill, 14 O. S. 372, the supreme court decided that, in order to review the decision of the court below, or the verdict of the jury, upon the ground that the decision, or the finding of the jury was not sustained by the facts, there must be a bill of exceptions, showing upon its face that it contains all the evidence given upon the trial and acted upon by the court below.

It is also made clear by previous adjudications, as well as by the statutes, how, and how only, the party can entitle himself to this review. Having no right to this upon the principles of the common law, he must secure the right by conforming to the statute which gives it. To do this, he must have exhausted his remedy in the court below where the evidence is heard; and this is never done until the court has refused him a.new trial, upon a motion, assigning for cause that the finding is not supported by sufficient evidence. Until this is done, a reviewing court is bound to presume, that he could have had justice in the court below, if he had seen fit to ask for it. It is the decision upon this motion to which alone the statute gives him the right to except. It is entirely immaterial whether the facts are found by a jury or the court, or whether the relief sought in the case is legal or equitable; the same uniform course must be pursued, and until the patty has invoked judicial action upon his motion to set aside the finding, he has laid no foundation for an exception, and has no authority of law for bringing evidence upon the record. A motion to set aside the finding and for a new trial, a decision of the court overruling that motion, and an exception taken to that decision are, then, indispensable prerequisites to the signing of a bill of exceptions for this causq; and unless they appear by the record to have been complied with, the appellate court has no power to re-investigate the facts upon the evidence, or to reverse the judgment, however manifest it may be that it should not have been rendered. If no such exception is taken, the party must be presumed to have been satisfied with the decision, or, at least, to have waived all objection to it.

From the very nature of this exception, the bill of exceptions must bring before the reviewing court all the evidence acted upon in the court below and upon which its ruling was founded; and as nothing but the record can be regarded *533it is a matter of course that the bill of exceptions must show, upon its face, either expressly or by necessary implication, that it contains the whole evidence.

W. W. Boynton and Edgar Sowers, for plaintiff in error.

W. C. Rogers and R. D. Updegraff, for defendant in error.

In Tilton v. Morgaridge, *12*O. S. 98, in the opinion of the court, it was said that the bill of exceptions contained all the evidence given on the trial, and that the judge therein certified it to contain “all the evidence introduced by the plaintiff for the purpose of-proving or tending to prove the arrest of the plaintiff upon said warrant issued by Joseph Clark, Justice, and all the proofs of the defendant tending to disprove the matters charged.” In that case it was desired by the counsel to review the decision on that particular point; but the court says, “it is not certified, nor does it appear by necessary implication, that the bill of exceptions contains all the evidence given upon the trial, which is indispensably necessary to enable this court to determine whether the court below did or did not err in overruling the motion for a new trial for the alleged cause that the verdict is against the evidence. We can not, therefore, in this case, look to the evidence set out by the bill of exceptions.”

In the case of Eastman v. Wight, 4 O. S., 156, 159, it is said the bill of exceptions does not state that all the evidence given at the trial is set forth — the language of the bill being that the witnesses, respectively, “testified in substance” as therein set forth; and in one instance, that a witness being re-called, “made some explanations, and testified in substance as follows:” And the court says,

> “To enable this court to review the judgment of the court below, overruling the' motion for a new trial, because the verdict is against the evidence, it must appear, either expressly or by necessary implication, that the bill of exceptions contains all the evidence given to the jury upon the trial. This has been the constant course of decision, and is affirmed in several reported cases.”

> “Now,” as Judge Ranney says, “if it is necessary to sustain the decision of the court, it will be presumed that other evidence was given upon the trial which justified the court in overruling the motion. Hence* we are not at liberty to consider the question as to whether this decision was sustained by sufficient evidence, or not.”

After the judgment was rendered in this case, a motion was filed to set aside that judgment and to grant a new trial because of and for the mistake of the clerk, that there was an irregularity in obtaining said judgment, because said judgment was rendered before said cause stood for trial.

What irregularity there may have been is not apparent from the record; and the record shows, thereupon the judgment was rendered. And we, therefore, are of the opinion that the court did not err in the matter of the decision, nor in overruling this motion, and the action by the court of common pleas will be affirmed in both cases. •