
    SCHER, Plaintiff-Appellant, v. SCHER, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3839.
    Decided March 21, 1957.
    Edward L. Williams, Russell G. Mock, Youngstown, for plaintiff-appellant.
    W. P. Barnum, Harry T. Rapport, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

Eileen Scher commenced action number 140140 in the Court of Common Pleas, Division of Domestic Relations, against Samuel Scher to obtain alimony. ‘

Samuel Scher sued Eileen Scher in the Court of Common Pleas, Division of Domestic Relations, in case number 140701 for divorce, in which action Eileen Scher answered.

Case number 140140 was consolidated for all purposes in case' number 140701. heard and disposed of by journal entry prepared and filed on April 25. 1955, by counsel for Samuel Scher.

On trial to the court under date of April 25, 1955, the court granted Samuel Scher a divorce and awarded alimony to Eileen Scher in the amount of $15,000.00 and certain items of personal apparel, and ordered Samuel Scher to pay numerous obligations.

On April 30, 1955, Samuel Scher filed a motion to modify the journal entry of April 25, 1955, for the reason that Eileen Scher withheld and concealed facts having a bearing upon the determination of alimony awarded her and on the division of property.

By journal entry dated May 5, 1955, the parties were ordered to appear at Fisher-Glider Cartage and Storage Company on May 9, 1955, and attempt “upon sight of the articles in storage to come to an amicable division of the same as between said parties” and “in the event said parties are able to agree upon a division of said goods and personal property the same shall be entered as a matter of record herein; and if not the fact and the circumstances attending such attempt as above described shall be reported to the court forthwith.”

From the order of May 5, 1955, Eileen Scher appealed to this court, and that appeal was dismissed as not constituting a final appealable order.

From the entry of November 16, 1955, wherein the court modified its former order as to alimony Eileen Scher prosecutes her appeal to this court on questions of law, it being claimed that the trial court made such modification entry without any hearing and without notice to counsel for Eileen Scher, and without the entry of modification being presented to her counsel for approval in accordance with the rules of the Court of Common Pleas, Division of Domestic Relations.

Having considered all of the errors assigned which relate to the claim of counsel for Samuel Scher that no notice was given of a hearing on the application for modification of the award of alimony and further upon the claim that the journal entry was placed upon record without submission to counsel according to the rules of practice in the Court of Common Pleas, Division of Domestic Relations, in the absence of a bill of exceptions this court is bound by the journal of the Court of Common Pleas, Division of Domestic Relations, which recites that the motion came on for hearing and that the court upon such hearing made certain findings.

It is claimed by way of affidavits of counsel for Eileen Scher that no notice was given and no hearing had upon the application for modification of award; such affidavits are a matter of record but are not incorporated in a bill of exceptions and cannot be considered sufficient to deny the statements embodied in the journal entry of the court. There is no bill of exceptions in this case.

As to the failure to submit the journal entry to counsel for Eileen Scher there is no evidence before this court other than the affidavits above referred to to the effect that such journal entry was not submitted to counsel. The whole matter is resolved upon the proposition that in the absence of a bill of exceptions this court is unable and unauthorized to reverse the, judgment of the Court of Common Pleas, Division of Domestic Relations.

Appeal dismissed.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.  