
    No. 346
    WHITE v. CLAWSON
    Ohio Appeals, 9th Dist., Summit County
    No. 771.
    Dec. 11, 1923
    465. ERROR — Motion for new trial required before Court of Appeals can consider the evidence.
   PER CURIAM.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in the Common Pleas in which W. O. Clawson was plaintiff and M. B. White and others were defendants. The petition alleged a partnership between Clawson and White, asked that the partnership be dissolved, that an accounting be had and prayed for judgment. The trial resulted in a finding and judgment for plaintiff. No motion for new triel was filed. Defendant prosecuted error and contended that there was no conflict in the evidence and that the evidence consequently amounted to an agreed statement of facts and it remained for the trial court only to apply the law to those facts. The Court of Appeals held:

Attorneys — Carl M. Meyers, for White; W. S. Hutchinson, for Clawson; all of Akron.

The bill of exceptions does contain a sharp conflict in the testimony as to whether there was any partnership at all. This court is not permitted to weigh and consider the evidence in the absence of a motion for a new trial, 11 OA. 203. Even if there had been no conflict in the testimony this court would not regard the bill of exceptions as an agreed statement of facts. An item of evidence is not necessarily an ultimate fact calling for the application of the law; the evidential facts would have to be weighed and considered by the court in determining the controlling facts. For that, a motion for new trial is necessary. Judgment affirmed.  