
    PYPER et v MUTUAL HOME & SAVINGS ASSN et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 1486.
    Decided May 14, 1938
    H. P. Williamsoxa, Dayton, for The Mutual Home & Savings Assn.
    Brumbaugh & Brumbaugh, Dayton, and Sidney Kusworm, Dayton, for plaintiff-appellants.
   OPINION

By THE COURT

The motion for new trial and rehearing will be overruled.

While memoranda accompanied the motion we were advised by counsel for appellee that the purpose of the motion was merely to save the record.

V/ritten opinion in the above entitled cause was released on March 8, 1938. On Api'il 4th following and before entry is approved counsel for appellee presented a motion requesting leave to file and make a part of the record the certificate of the Superintendent of Building & Loans of the State of Ohio, taking over for liquidation the affairs and assets of The Mutual Home & Savings Association filed on the Sis't day of December, 1937, and also a copy of the order of the Common Pleas Court of Montgomery County, filed on the 2nd day of April, 1938, providing for a sale of assets, reorganization and liquidation of the Mutual Home & Savings Association. Copies of the above are attached to the motion. It is represented that the proceedings above l'eferi'ed to took place subsequent to the heai’ing of this cause de novo by this court and are necessai'y to show the true condition of appellee at this time.

Counsel for appellants object to the filing of the documents referred to in the motion.

The power of a court hearing a cause de novo to open up and hear new evidence is generally within the discretion of the court.

It is stated that the purpose of the motion is to show the condition of the association at the present time. We are unable to see that this would be competent since the pertinent inquiry is as to the condition at the time of the transfer of stock , accounts to deposit accounts. The motion will be overruled. Entry may be drawn accordingly.

This entry may precede the ruling on the application for new trial.

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

ON MOTION TO CERTIFY

Decided June 20, 1,938

By THE COURT

The above entitled cause is now oeing determined on application of the defendant, The Mutual Home & Savings 'Association of Dayton, Ohio, for an order to certify the cause to the Supreme Court of Ohio for the reason that the decision and judgment hei'ein rendered' is claimed to be in conflict with the decision of the Court of Appeals in Cuyahoga County, Ohio, in the case of The Mutual Building & Investment Company v Frederick, reported in Volume 43 Oh An 270.

It has always been our policy to lend every aid possible in furtherance of a review in the Supreme Court and we earnestly hope that such may be had in the instant case.

However, in determining whether or not we will order certification it is requisite that we judicially determine whether or not there'1 is* a conflict between “our jhdgA ment and that of another Court of Appeals. See Article IV, §6, Ohio Constitution. We find no similarity in the judgment in our ease and that of the Frederick ease decided by the Court of Appeals of the 8th Judicial District. The question presented was entirely different and we might say in passing that we have no quarrel with the enunciation therein made.

The application to certify must be overruled.

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