
    LUND v KLINE
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2724.
    Decided May 24, 1937
    Keating, Corkwell & Wright, Columbus, for plaintiff-appellee.
    Vorys, Sater, Seymour & Pease, Columbus, for defendant-appellant.
   OPINION

By THE COURT

This matter is before us on application of the plaintiff-appellee for a rehearing.

It is claimed that the decision is contrary to law, in that there is no evidence aliunde to permit the consideration of the affidavits of the jurors, for the reasons stated.

We are of the view that the former opinion of the court sufficiently meets and answers the objection of the plaintiff-appellee.

The court’s opinion covering that point is clearly indicated in the syllabi of the opinion.

Plaintiff-appellee applies for leave to present to this court affidavits in opposition to those rejected by the trial court, but here considered.

This relief is asked by the plaintiff-appellee-to afford a hearing upon the facts as to what transpired in the jury room, in order that this court may be informed of such facts.

We know of no proceeding that would permit this court, on a case before it on a bill of exceptions, to consider new evidence on a matter heard and passed upon by the trial court.

The trial court held:

“Inasmuch as these (affidavits) are as consistent with a proper determination of the case by the jury as an improper one, the court is of the opinion that they would not furnish the aliunde evidence necessary to successfully impeach the jury’s determination.”

The plaintiff-appellee had the opportunity to submit, in the court below, counter-affidavits, in order that all the evidence on the point could be incorporated in the bill of exceptions.

The plaintiff-appellee asks that in the event the rehearing and leave to file counter-affidavits be refused, that the order remanding the cause go only so far as to direct the trial court to hear affidavits of both plaintiff and defendant, before granting the motion for new trial.

We do not think it would be proper for this court to instruct the court below as to what should be done. We have remanded the case for further proceedings:

Cbunsel state in their letter of May 14th, other reasons why, in their judgment, they should be permitted to offer counter-affidavits.

These arguments may not be considered by this court for reasons already stated.

Application for re-hearing refused.

BARNES, PJ, HORNBECK and GEIGER, JJ, concur.  