
    GREEN, Admr. v SULLIVAN et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 3239.
    Decided Jan 17, 1941
    McFadyen, Swisher & Warden, Columbus, for plaintiff-appellant.
    Willard C. Walter, Chillicothe, for defendants-appellees.
   OPINION

BY THE COURT:

Submitted on motion of appellant for an order of diminution of the record in the trial court so that as a part thereof there may be included,

(11 Representation and order of Probate Court under date of March 8, 1940. finding the estate of Luidgarde Schmidt, deceased, insolvent;

(2) Motion and judgment of Probate Court under date of March 11, 1940, wherein the Probate Court made a finding that the insolvency of the estate was not material to the determination of the validity of the chattel mortgage of the defendants-appellees.

It is not the province of this Court to determine of what the record in the lower court shall consist, unless it is obvious that something has been omitted therefrom. This determination of necessity must be made by the trial judge. If anything has been omitted from the original papers which properly should be included therein, we are willing to remand the case for that purpose. This will be done and opportunity will be given the trial judge to supply any papers or entries which should properly be included in the transcript of docket and journal entries or the bill' of exceptions.

The motion for diminution of the record cannot be employed in lieu of mandamus.

We regret that counsel for plaintiff-appellant did not make certain, if it is the fact, that papers necessary to the complete record below were before the court at the time that the appeal was submitted on its merits.

Order accordingly.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.  