
    No. 979
    BORZYKOWSKI v. INDUS. FIBRE CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6069.
    Decided June 22, 1925
    Judges Farr & Pollock, of 7th Dist., and Patterson, of 5th Dist., sitting.
    127. BANKRUPTCY—A motion for a new trial in bankruptcy proceedings must be filed with the Referee in bankruptcy and not with the Court of Common Pleas, when such proceedings were had in the Referee’s court.
    Attorneys—Chas. Reed & J. B. Keenan for Borzykowski; Doerfler & Kornhauser for Company; all of Cleveland.
   FARR, P. J.

Benno Borzykowski, the purported inventor of several processes for the manufacture of artificial silk, formed a company for their manufacture which failed. Later a second company was formed which is now bankrupt and it was to keep the bankrupt company from merger with other interests that this suit was brought in the Cuyahoga Common Pleas by Borzykowski.

The case first came to be heard upon an application for the appointment of a referee, which application was allowed and a referee appointed. Motion for a new trial was overruled in Common Pleas, which was sent to the Referee for consideration; and which was later overruled and judgment entered in the Court of Common Pleas, from which error is prosecuted here upon the ground that the judgment was against the weight of evidence; although the right to send the matter to the referee is denied. The Court of Appeals held:

1. The first contention of Borzykowski is that the action below might be sent to a referee, and is based on claim that jury and not equitable issues are presented. But the question is one of equity. 54 OS. 348; 11475 GC.

2. As to the proposition that the judgment is against the weight of evidence, from finding of facts it was clearly shown that Borzy-kowski long since ceased to act in good faith.

3. Whether or not a motion for a new trial was regularly filed with and passed upon by the Referee. According to evidence there was never any formal motion for a new trial filed with the Referee. All motions for a new trial must be filed and passed upon by the Referee. 11478; 11578 GC.

4. However Borzykowski is entitled to the return of his formulae upon the cancellation of his stock in order to place him in the same position he was before.

Judgment of the Common Pleas affirmed.  