State ex rel. Community Improvement Corp. v. City of Independence

Matthias, J. The principal error assigned in this case is that the Court of Appeals was in error in determining, under the facts and circumstances, that relator is not entitled to the relief prayed for. Therefore, this court is requested to make a factual determination as to whether the property involved is, as relator contends, unsuitable for single-residential purposes, and that the zoning ordinance is thus an unconstitutional deprivation of property without due process of law. Respondent, however, contends that relator has not filed a bill of exceptions. If this is the case and such bill of exceptions is necessary for the factual determination required herein, such contention would be dispositive of this appeal, for there would be nothing in this court exemplifying the facts necessary in determining the issue presented. It is apparent at first glance that the original papers filed in this case and the entry of the Court of Appeals are insufficient to point out the factual error of which relator complains. More is required, for the facts underlying such documents are barely brought to the surface if, indeed, they are apparent at all. Thus, the testimony considered in the Court of Appeals, the trial court in this instance, must be considered before a proper ruling can be made. The testimony in this case was taken before a master com [72] missioner as authorized by Section 2315.40, Revised Code. This procedure, however, does not give snch testimony any feature distinguishing it from testimony taken originally by that court itself. In short, testimony taken by a master commissioner stands upon an equal footing with testimony taken by a Court of Appeals. Nothing more and nothing less. It is elementary that “a mere stenographic transcript of the entire proceedings of a cause, without authentication, is not a bill of exceptions.” Knowlson v. Bellman, 160 Ohio St. 359, 364. Therefore, a transcript taken before a master commissioner, standing as an equal to that taken before a Court of Appeals, must qualify as the bill of exceptions required by Section 2321.05, Revised Code, before it can properly be considered by this court. The method by which this transformation may occur is precisely designated by Section 2321.12, Revised Code. Expressed conversely for the present purposes “under Section 11571, General Code [Section 2321.12, Revised Code], there is no valid bill of exceptions which may be entertained by a reviewing court, where the same is not settled, allowed and signed by the trial judge, or where there is no agreement by the parties individually or by their attorneys stipulating that it is a true bill of exceptions, or where such bill is not authenticated as a true bill by the certificate of the official court reporter.” Paragraph two of the syllabus in Knowlson v. Bellman, supra. (Provision for an official court reporter in the Court of Appeals is made in Section 2501.16, Revised Code.) An examination of the “transcript of testimony” submitted to us by counsel for relator discloses that such transcript has not been authenticated as a bill of exceptions. That being so, there is in fact no bill of exceptions before this court exemplifying the facts necessary in determining the issues presented. In so holding, we are aware that this precise set of facts was presented to this, court in State, ex rel. Cliffview Land Co., v. Maloney, Commr., 166 Ohio St. 45. We hereby follow that case and dismiss the appeal. Appeal dismissed. • ZiMMERMAsr, 0 ’Neill, Schxeideb and Beown, JJ., concur.