
    Zander v. Fanslaw.
    (Decided February 6, 1928.)
    
      Mr. H. J. Reed and Messrs. E. G. & G. H. Schwcm, for plaintiff in error.
    
      Mr. D. Wassermavt, for defendant in error.
   Sullivan, P. J.

This cause is here on error from the court of common pleas of Cuyahoga county, and it is sought to reverse the judgment of the court below upon the ground that upon motion for new trial the court refused to allow the admission of a paper writing called a release, and other evidence of an oral nature to support the motion for new trial, which was made on the ground that, by reason of a change of attorneys and the absence of an attorney, the plaintiff in error did not have a fair and impartial trial.

The cause of action is based upon a claim of personal injuries growing out of an automobile collission happening September 15,1925, wherein a judgment for Jacob Fanslaw, plaintiff below, was recovered, which judgment is sought to be set aside upon the ground stated.

On the question whether there was an attorney present at the trial, we observe this entry on the docket of the court below:

“November 17, 1926. To Court: The parties by their attorneys come and a jury is duly impaneled and sworn, and, after due trial, do find for the plaintiff for $300.”

It is claimed, however, by the defendant below, that, while an attorney might have been in the courtroom he disclaimed any interest in the case, and did not represent ■ her, and that her former attorney had either withdrawn from the case or was out of touch in some manner with the court. A general denial only was filed, and upon the motion for a new trial the purported release was offered to support the motion, and the court refused to consider it, on the ground that it had not been pleaded as a release, and denied in full the claim sued upon by the plaintiff.

From a reading of the record, it appears that what the court objected to was hearing the motion on oral testimony, instead of by affidavits to support the motion, and the question arose, not as to the abuse of sound discretion in the overruling of the motion, but as to whether, specifically speaking, the court was guilty of an abuse of sound discretion by being willing to have affidavits to support the motion submitted to it, instead of oral testimony, according to the practice of the court, and under the rules in cases of the character of the one at bar.

The court had a discretion as to which way it would proceed, and it was willing to proceed in accordance with the rule as to affidavits, but counsel insisted upon oral testimony and the offering of the document, which the court refused, and counsel refused to submit affidavits to support the motion.

It is claimed that another ground for the charge of abuse of sound discretion is that the cause was not continued, so that the defendant below might employ counsel; but it is plain from the record and the transcript that counsel was present, but he was a member of the bar who apparently was not the choice of the litigant, and the court proceeded under the theory that the parties had a right to appear for themselves, and, inasmuch as the case had on at least two occasions been continued, the court exercised its discretion in compelling the parties to proceed, inasmuch as the case was called.

On account of the deficiency in the pleading above noted, it is clear that the release was not competent, and it is also clear that the court had a right to exercise discretion with respect to oral testimony or affidavits to support the motion. We do not think there was an abuse of discretion in this respect, and therefore hold that there is no prejudicial error in the record.

We are unanimously of the view that, at the court’s suggestion to supply affidavits to support the motion, counsel should have complied with the request, and, if such had been done, this court could ■ then have considered the question as to whether there was an abuse of sound discretion.

Again, under the authorities, counsel could have made a motion to amend the pleadings, even after judgment, by inserting the release in his amended answer; but he did not see fit to do so, and therefore the court could not consider the question of the release.

Thus holding, we do not find there is any prejudicial error, and the judgment of the court below is hereby affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  