
    Acosta, Appellant, v. Echt et al., Appellees.
    (No. 25956 —
    Decided September 13, 1962.)
    
      
      Messrs. Sindell, Sindell, Bourne & Markus, for appellant,
    
      Messrs. Hauxhurst, Sharp, Cull & Kellogg, for appellees,
   Fess, J.

This is an appeal on questions of law from the entry of a summary judgment in favor of defendants, appellees herein. Defendants moved the court to enter a summary judgment on their behalf “and in support of such motion, and in accordance with R. C. 2311.041 defendants refer the court to ‘Exhibit No. 1,’ deposition of the plaintiff, and to defendant’s brief filed herewith.” Exhibit No. 1 is a carbon copy of a deposition of the plaintiff taken by defendants as upon cross-examination, which is certified by the notary public.

The journal entry recites:

“Upon consideration of the motion for summary judgment and the pleadings, drafts [sic], deposition of the plaintiff and oral argument of counsel for the respective parties, the court finds there is no genuine issue as to any material fact which would impose liability upon the defendant,” etc.

Plaintiff-appellant’s praecipe upon the appeal states:

“Please prepare and file with the Court of Appeals a transcript of the docket and journal entries together with the original papers in this case.”

The motion for summary judgment with Exhibit No. 1-at-tached is included in the file transmitted to the Court of Appeals by the clerk of the Common Pleas Court.

No bill of exceptions has been filed incident to the appeal.-

It is a generally accepted rule in civil cases that, when "an appeal is taken on questions of law and the errors assigned are such as can be disclosed only by a bill of exceptions, it is mandatory that a bill of exceptions be filed within the time prescribed by law, and, where no bill of exceptions is so filed, the reviewing court has no alternative but to affirm the judgment. 4 Ohio Jurisprudence (2d), 566, Section 1202. In accordance with this rule, a bill of exceptions containing the evidence at the hearing upon a motion is generally necessary to enable an' appellate court to review the action of the lower court in either sustaining or overruling the motion. 3 Ohio Jurisprudence (2d), 335, Section 425. Thus, in the recent decision of the Cuyahoga County Court of Appeals in Allstate Ins. Co. v. Dye, 113 Ohio App., 90, in its opinion the court says:

“ * * * A bill of exceptions is absolutely necessary to put upon tbe record, in a review on questions of law, tbe evidence presented upon the hearing of a motion which is tried either by affidavit, by documents attached to pleadings, or by stipulations, or other evidence to be considered in passing on a motion for summary judgment. * *

The same rule is applied to depositions. The reviewing court cannot consider depositions which are neither incorporated in the bill of exceptions, nor attached to it, nor referred to by any mark or particular designation. And a deposition which is merely referred to in the bill of exceptions with the objections thereto in the trial court, but which is not attached to the bill, or shown to be a part of it, cannot be considered on review. 3 Ohio Jurisprudence (2d), 371, Section 460. It is said that there is a somewhat more liberal rule with respect to attaching to a bill of exceptions a deposition where the identity of the deposition is certain. Pullman Co. v. Washington, 10 C. C. (N. S.), 105, 20 C. D., 17. But this presupposes that a bill of exceptions has been filed. See, also, 3 Ohio Jurisprudence (2d), 374, Section 464, concerning the necessity of properly identifying exhibits referred to in a bill of exceptions.

We recognize that in its application the rule is harsh and may defeat a review of a judgment which would otherwise be determined on its merits, but we are constrained to follow the decision in the Allstate case, and to hold that in the absence of a bill of exceptions, no error otherwise appearing upon the record on this appeal, the judgment must be affirmed. Tenesy v. City of Cleveland, 133 Ohio St., 251.

Judgment accordingly.

Doyle and Hunsicker, JJ., concur.

Fess, J., of the Sixth Appellate District, and Doyle and Hunsicker, JJ., of the Ninth Appellant District, sitting by designation in the Eighth Appellate District.  