
    No. 446
    ANDERSON v. BELDEN
    Ohio Appeals, 9th Dist., Lorain County
    No. 229.
    Decided April 27, 1923
    PRACTICE — (1) Exclusion of improperly admitted evidence — (2) Misconduct of counsel in argument to jury.
    Attorneys — Harry M. Redington, for Anderson Webber, Webber & Metcalf, for Belden.
   PARDEE, J.:

Epitomized Opinion

Belden filed an action against Anderson, an admin-istratrix de bonis non of the estate of Hattie B. Jenns, deceased. The suit was to recover on a promissory note alleged to. have been executed and deliv ered to plaintiff by the deceased. After the deat of the deceased Belden presented her claim to th administratrix for allowance and it was rejectee The administratrix in her answer denied that sai decedent had made, signed, executed or delivere the note on which the action was based. During th trial the court permitted the introduction of testi mony which was incompetent under the Ohio Statut which forbids a person to testify against'an admin istrator of a deceased person as to facts and trans actions which occurred prior to the decedent’s deatl When the trial court discovered his error he in structed the jury to disregard all of this evidenc which had been improperly admitted. The trial re suited in a verdict and judgment for the plaintiff The defendant prosecuted error, and also claime misconduct on the part of the plaintiff’s attorney In sustaining the judgment of the lower court, th Court of Appeals held:

1. Where improper evidence is withdrawn iron the consideration of a jury, it is the duty of a review ing court to ignore the error unless an examinatioi of the entire record shows that the admission of thi evidence was prejudicial.

2. The counsel in his argument to the jury mus confine himself to matters in evidence and such in ferences that can properly be drawn therefrom, am it is the duty of the trial judge upon request of eithe party, and in some instances without request of tb other party to see that the argument is so restricted  