
    No. 713
    SMITH v. WATSON
    Ohio Appeals, 3rd District, Defiance County
    No. 47.
    Decided June 16, 1923
    55B. BILL OF EXCEPTIONS.
    Upon failure to file bill of exceptions, reviewing court presumes that lower court had before it evidence which warranted the judgment — Action by surety against co-surety and judgment taken upon cognovit.
    Attorneys — Winn & Goller, for Smith; L. W. Watson, for Watson.
   HUGHES, J.

Epitomized Opinion

Watson sued Smith alleging that they had executed and delivered to a bank as surety for a third person, their promissory note with a warrant of attorney annexed; that Watson paid the note and that neither Smith nor the principal obliger had paid any part of the note. The note was attached to the petition and judgment was entered on the same day it was filed, an attorney having entered Smith’s appearance by virtue of the warrant of attorney. Thereafter Smith filed his motion to vacate and set aside the judgment. The motion was overruled. Exceptions were taken to the ruling, but no bill of exceptions was prepared or filed. In affirming the judgment the Court of Appeals held:

1. “It is a well settled and elementary proposition of law that in the absence of a bill of exceptions a reviewing court indulges m the presumption that the lower court had before, it sufficient evidence or admissions and declarations of counsel or the parties or other facts and circumstances that warranted and supported the judgment or order entered.”

2. It must be presumed therefore that there was no valid defense to the claim and that the petition states a cause of action for contribution among sureties.  