
    Smolinski et al. v. Kabala.
    
      Appeal and error — Evidence perpetuated only by bill of exceptions — Facts in affidavit supporting motion to voxate dismissal, not considered, when — Sections 11370 and 11607, General Code — Dismissal of case after trial, submission and decision — Section 11586, General Code.
    
    1. Ordinarily evidence can only be perpetuated for purpose of review by bill of exceptions.
    2. Alleged facts in affidavit, supporting motion for order to vacate entry of dismissal without prejudice, claimed violative of Section 11586, General Code, held not proper part of record subject to consideration of appellate court, where not preserved by bill of exceptions, in view of Sections 11607 and 11370.
    (Decided December 14, 1925.)
    Error : Court of Appeals for Lucas county.
    
      Messrs. Walinski é Flowers and Messrs. Holbrook & Banker, for plaintiffs in error.
    
      Mr. G. A. Thatcher and Mr. G. A. Meek, for defendant in error.
   Richards, J.

In the court of common pleas Bertha Kabala commenced an action for the purpose of setting aside a conveyance of certain real estate averred to have been made by the defendants in fraud of her rights. The claim which she sets up was one to recover damages for personal injuries caused to the plaintiff by the alleged negligent operation of an automobile of the defendants, and this claim had not then been reduced to judgment.

The transcript of the docket and journal entries shows that after the issues were made up, on May-25, 1925, the cause came on to be heard on the motion of the plaintiff for a new trial, and that thereupon it was ordered that said motion be and it was accordingly withdrawn. On the same day the record shows the following entry:

“On motion of plaintiff therefor, it is this day ordered by the court that said cause herein be and the same is hereby dismissed without prejudice at plaintiff’s costs. Final record dispensed with. To all of which defendants severally except.”

Thirty days after the case was ordered dismissed without prejudice, but during the same term of court, the defendants filed a motion for an order vacating and setting aside the entry dismissing the cause without prejudice at plaintiff’s costs, and for a finding and decree upon the issue and the evidence adduced at the trial of the cause in favor of the defendants, dismissing the petition of the plaintiff at her costs, for the reason, as stated in the motion, that the court, having taken the cause under advisement and rendered a decision therein, was without jurisdiction to dismiss the same without prejudice at plaintiff’s request. The motion recited that an affidavit of fact in support of the motion was attached to the motion and made a part thereof.

That affidavit states, in substance, that the case came on to be heard about the 30th day of April, 1925, on the pleadings and the evidence and arguments of counsel, and was fully submitted to the court and taken under consideration, and that on April 30, 1925, the court made the following entry upon the trial docket:

“Submitted; finding and decree for defendants; plaintiff excepts; bond on appeal fixed in sum of $100; see J. E.”

The affidavit further sets forth that on May 4, 1925, the plaintiff filed her motion for new-trial, and on the same day began a new action against the defendants in the court of common pleas in which the allegations of the petition are in substance the same as those in the original case, and that on May 25, she withdrew her motion for new trial in the original case, and without any notice to attorneys for the defendants the court made the following order on the trial docket, “Dismissed without prejudice at plaintiff’s costs. No record” — which entry was duly journalized upon the docket of the court.

The transcript of the journal entries shows that at a later date, but during the same term of court, the following journal entry appears:

“This day this cause came on to be heard upon the motion of the defendants to set aside the order and judgment of the court entered on May 26, 1925, dismissing this cause without prejudice, and for finding and decree in accordance with entry of this court on April 30, 1925, and the same was submitted to the court.
“Upon full consideration thereof the court finds that the facts set forth in the affidavit in support of said motion are true, but that said motion is not well taken and should be and the same is hereby overruled, to which finding and order of the court and each and every part thereof the defendants except.”

The journal entries quoted are the only ones which appear upon the record of the court.

The plaintiffs in error insist that the case had been finally tried, submitted to the court, and decided, and that, therefore, under Section 11586, General Code, neither the plaintiff nor the court had any power to dismiss the case without prejudice.

No bill of exceptions was taken, and the first and serious question that we meet is whether the record is in such condition as will permit a review of the questions sought to be made. The last journal entry of the court finds “that the facts set forth in the affidavit in support of said motion are true,” but does a reviewing court have a right to look to the affidavit filed in support of the motion and in that manner ascertain what those facts are?

It is provided in Section 11607, General Code, that the record shall be made up from the petition, process, return, pleadings subsequent thereto, reports, verdicts, orders, judgments and all material acts and proceedings of the court. We are asked now to hold that the evidence contained in the affidavit should be treated as a part of the record. To do so would be to inject a new principle into the jurisprudence of the state, the universal rule being that evidence can only be perpetuated by a bill of exceptions. It was held in Goldsmith v. State, 30 Ohio St., 208, that exhibits and affidavits given in evidence on the hearing of a motion, which are not legitimately a part of the record, cannot he considered by a' reviewing court on error to a decision of the motion, even though they may have been regarded as a part of the case, unless they are properly brought upon the record by a bill of exceptions. See, also, Smith v. Board of Education of Bucyrus, 27 Ohio St., 44, and Schultz v. State, 32 Ohio St., 276. In O’Brien v. Lynch, 90 Ill. App., 26, it was held that affidavits in support of a motion to vacate an order of dismissal are not part of the record unless made so by the bill of exceptions. In Martin v. Harrison, 50 Ind., 270, it was held that an affidavit filed in support of a motion for new trial, although referred to in the motion, is not a part of the record unless made so by a bill of exceptions. The general principle is stated in 2 Buling Case Law, 128, and 4 Corpus Juris, 143. The court, of course, speaks only by and through its record, and the minutes of the trial judge are no part of the record.

A motion is merely an application for an order, as defined by Section 11370, General Code, and it cannot be made the means of perpetuating testimony so as to dispense with the necessity of a bill of exceptions. If this motion makes the testimony attached to it a part of the record, then it would be equally competent for á defeated litigant to attach to his motion for new trial all of the evidence taken in the case, and to aver that it is a part of the motion, and then if his motion should be overruled proceed immediately to the Court of Appeals without the necessity of a bill of exceptions.

Passing the question whether it is competent to impeach or alter the record of a court by affidavit, we are unable to consider the questions sought to be made because of the. fact that no bill of exceptions was taken, and the judgment will therefore be affirmed.

Judgment affirmed.

Williams and Young, JJ., concur.  