
    PRACTICE.
    [Hamilton Circuit Court,
    January, 1897]
    Swing, Smith and. Cox, JJ.
    Miller et al. v. Douglas, Exr.
    Finding op Pacts Separatery from Concrtjsions oe Daw.
    Where there has been a finding of facts separately from conclusions of law, a motion for a new trial is not necessary in order to entitle a reviewing court to determine whether the conclusions of law oil the facts found are correct.
    Error to the Court of Common Pleas.
   Smith, J.

The defendant in error has filed his motion- to strike the petition in error from the files on the ground that the court has no jurisdiction oi 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 court. By the final degree 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 findings of fact. made no motion for a new trial, but filed tneir petition in error, alleging that the court erred in its conclusions of law on the facts found.

Reuben Tyler, Willis M. Kemper, Frank H. Kemper, David Davis and Burch & Johnson, for Plaintiffs in Error.

Howard Douglass and George W. Harding, contra.

There is no reason whatever for striking the petition in error from 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. When there has been a finding of facts separately from the conclusions of law uuder the provisions of section 5205 R. S. a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusions of law on the facts found are correct. 34 O. S.,101. All that is necessary in such cases is to except to such judgment. But it it is desired to have the reviewing court decide whether the facts so found by the court are supported oy the evidence, it is essential to properly present this question that a motion for new trial on this ground be filed and overruled, and a bill ot exceptions containing all of the evidence be allowed.

In this case the judgment does not show that the court, at the request of either of the parties, stated in writing the conclusions of fact lound separately from 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 35 O. S., 118, that a judgment rendered on a special finding of facts made by the court may be reviewed 0,1 error, although such finding was not made at the request of either party.

The motion will be overruled. 
      
      
         This decision is duplicated undei title of Mither v. Douglas, post, 715.
      For decision of the court of common pleas, see 4 S. & C, P. (15), 414.
     