Micklethwait v. City of Portsmouth

By the Court. This cause has been admitted to this court on error from the Court of Appeals of Scioto county, in which court it was heard upon appeal. In the hearing upon appeal there was an agreement between the parties that the evidence which had been introduced in the court of common pleas should be submitted as the evidence in the hearing in the Court of Appeals. The principal issue in the case was whether bids which had been submitted for constructing street improvements were conditional bids and whether for that reason they were invalid. The evidence submitted included a communication addressed by the bidder to the city, accompanying the bids, and the Court of Appeals in rendering final judgment, in its journal entry, found as a fact that the communication did not render the bids conditional bids and did not affect in any way the validity of the bids submitted. The plaintiff in error has assumed that the agreement above referred to, and the finding *515 of the court, as shown by the entry, would dispense with the necessity for a bill of exceptions, and, therefore, no bill of exceptions has been allowed. This court is of the opinion that the agreement between the parties related only to the procedure in the Court of Appeals, and, inasmuch as the finding of fact was against the plaintiff in error upon the evidence submitted, and this court does not have before it the evidence upon which that finding was made, this court can only consider the pleadings and the judgment of the Court of Appeals. The answer in the trial court being a denial of the allegations of the petition there is nothing for this Court to consider. The judgment of the Court of Appeals will therefore be affirmed. Judgment• affirmed. Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur. Wanamaker, J., not participating.