
    PRACTICE.
    [Hamilton Circuit Court,
    January Term, 1897.]
    Cox. Smith and Swing, JJ.
    David W. Mither, et al. v. Howard Douglass, Exr., et al.
    Mottok for a New Trial not Necessary to Enable Appellate Court to Review Questions of Haw.
    All that is necessary where there has been a finding of facts separately from the conclusion of law, under sec. 5205, Rev. Stat., to entitle the reviewing court to pass upon the questions of law, is an exception to the judgment of the court.
    MotioN to strike petition in error from the files.
   Smith, J.

The defendant in error has filed his motion to strike the petition in error in this case from the files, on the ground that the court has no jurisdiction of the subject matter or of the parties, and that no motion for a new trial was made, and no bill of exceptions was allowed.

The case in the court of common pleas, was one involving the right of the parties to the distribution of a fund of which the court clearly had jurisdiction, and all of the parties were before the eourt. By the final decree, the court found the facts in the case, and its conclusions of law on such facts, and decreed the fund to some of the parties, to the exclusion of the others. The losing parties excepted to the conclusions of law and the judgment rendered; but being satisfied with the finding of facts made no motion for a new trial, but filed tbe petition in error alleging that the court erred in its conclusions of law on the facts found.

There is no reason, whatever, for striking the petition in error irons the files. The plaintiffs in error were authorized to file it, alleging error in the record as it stands, and it was filed in due time. Where there has been a finding of facts, separately from the conclusions of law, under the provisions of sec. 5205, Rev. Stat., a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusion of law on the facts found are correct; Longworth v. Cincinnati, 34 O. S., 101, p. 113. All that is necessary in such case is to except to such judgment. But if it is desired to have the reviewing court decide whether the facts so found by the court are supported by the evidence, a motion for a new trial on this ground should be filed and overruled, and a bill of exceptions containing all of the evidence allowed.

In this ease the judgment entry does not show that the court, at the request of either of the parties, stated in writing the conclusions of law. But the entry shows that the findings of fact and conclusions of law were therein stated separately. But it is held in Harner v. Batdorf, 35 O. S., 113, that a judgment rendered on a special finding of facts made by th* court, may be reviewed on error, although such finding was not made at the request of either party.

The motion will be overruled.  