#### Regan, Admx., *v.*McHugh.

*Direction of verdict*— Judgment *cannot be reversed*— Unless *record presents all evidence*— Certificate *of trial judge*— Necessary *to show bill of exceptions is complete.*

1. A judgment of a trial court should not be reversed for error in directing a verdict for either party unless the record presented to the reviewing court affirmatively shows that it contains all the evidence upon which the direction was given.

2. That a bill of exceptions contains all the evidence offered upon the trial of a cause can be shown only by the certificate of the trial judge.

(No. 10461

Decided June 9, 1908.)

Error to the Circuit Court of Hamilton County.

Mrs. Regan, as administratrix of John Regan, deceased, brought suit in the court of common pleas to recover from McHugh $413.70, the sum which she had been compelled to pay to redeem certain real estate in Cincinnati from a tax sale which had resulted from the alleged default of the defendant to pay the-taxes agreeably to his covenant as lessee of her intestate. The defend*327ant in his answer expressly admitted the covenant upon which the plaintiff counted and impliedly admitted the . non-payment of the taxes according to its terms. By cross-petition he sought to recover the sum of $1,500.00, the damages .which he alleged he had sustained by reason of the breach of the covenant of quiet enjoyment, and the right to purchase said premises, the defendant’s allegation being, that the plaintiff’s decedent had made covenants to that effect in his lease, and that his title had failed; that the defendant had been evicted, losing the enjoyment of the premises and certain improvements which he had erected thereon, and losing the covenanted opportunity to purchase the premises.

... The plaintiff replying first, admitted that her intestate had made the covenant counted upon in the cross-petition and denied all other allegations which it contained. Further replying, she alleged that in a former suit between her intestate and the defendant, the suit being brought by the former to recover taxes previously due upon the same covenant upon which she counted in this case, the defendant had pleaded the same matters now set up in his cross-petition in the present case, that said former cause proceeded to trial upon its merits and was determined in favor of the plaintiff, and that thereby the matters alleged in the cross-petition of the defendant had all been adjudged adversely to him. Upon these issues the cause was tried to a jury, and at the close of the evidence upon motion of the plaintiff the jüry was directed to return a verdict in her favor for the amount claimed in her petition. To that in*328struction the defendant excepted. Such verdict being returned the defendant moved for a new trial. That motion was overruled and a judgment for the plaintiff was entered upon the verdict so directed. A bill of exceptions was taken containing evidence offered upon the trial, but containing no certificate that it was all the evidence offered upon the trial, and a petition in error was filed by the defendant in the circuit court where the judgment of the court of common pleas was reversed, and the cause was remanded to the latter court for a new trial. The reversal of the judgment of the circuit court and the affirmance of that of the court of common pleas is the object of this proceeding in error.

*Mr. Frank M. Coppock*and *Mr. H. W. Jones,*for plaintiff in error.

*Mr. Charles J. Hunt; Messrs. Bennett & Utter*and *Mr. O. W. Bennett,*for defendant in error.

Shauck, J.

Counsel for the plaintiff do not present to us their views upon any question which was controverted in the court of common pleas. The proposition which they urge upon our attention is, that because the bill of exceptions does not contain a certificate of the trial judge that it .contains all of- the evidence which was offered upon the trial of the court of common pleas, there was not presented to the circuit court a record which would, in any view of the questions considered in the court of common pleas, authorize a reversal of its judgment. Counsel for the de-*329fendant insist that although there is no certificate to that effect, the bill of exceptions does contain all the evidence which was offered upon the trial. But the circuit court was reviewing the proceedings of a court of record and it was imperative that the judgment should stand, unless impeached by the record itself. The impracticability of inquiry upon this question beyond the record is apparent here, because counsel for the plaintiff assert that the action of the common pleas court was influenced by material evidence which was not presented to the circuit court. The absence of the certificate must be regarded as determining the question conclusively in favor of the plaintiff.

Since the circuit court could not assume that it had before it all the evidence which was offered in the court ®f common pleas, the practical question is, whether it reversed the judgment upon a ground which required a consideration of all the evidence which had been presented in the trial court. The entry of the judgment of the circuit court does not show the ground of the reversal in obedience to the requirement of Section 6709, Revised Statutes. It appears, however, from the record that the only exception taken by the defendant upon the trial was to the action of the court in directing a verdict for the plaintiff, and that all the errors assigned in-the petition in error in the circuit court relate either to that instruction or to the weight of the evidence. That instruction must, therefore, be taken to have constituted the ground of reversal. The plea of a former adjudication of the matters alleged in the cross-petition of the defendant was made in the reply, and it was *330deemed to be traversed without further pleading. On that issue it was competent for the plaintiff to establish her right to a verdict, as a matter of law, by introducing the record of such former adjudication. The bill of exceptions affirmatively shows that a record of a former suit between the plaintiffs intestate and the defendant was offered in evidence. That it was admitted in evidence does not appear affirmatively, but in aid of the judgment which it was reviewing, the circuit court should have presumed that it was admitted and that it conclusively established the plaintiff’s plea of -a former adjudication of the matters alleged in the cross-petition. That, in view of the admissions of the answer, would have justified the trial judge in directing a verdict for the plaintiff. The circuit court, therefore, did not have before it a record which justified it in reversing judgment of the court of common pleas whatever may be the correct view upon other questions controverted in the latter court.

*Judgment of the circuit court reversed and that of the common pleas affirmed.*

Price, C. J., Crew, Summers, Spear and Davis, JTJT., concur.