Dayton v. Hinsey. ford, 17 Ohio St. 508; Taylor v. Taylor, 8 How. 183; Piatt v. Longworth, 27 Ohio St. 159. We think the plaintiff is entitled to the relief prayed for as to Joseph Kellerman, and that the judgment in his favor, and the conditional order as to the Mercer county land, should be reversed, and that the judgment in favor of Mrs. Kellerman should be affirmed. Judgment accordingly. CITY OF DAYTON v. HINSEY. 1. A bill of exceptions, taken at a term of the court subsequent to the trial, on overruling a motion for a new trial, will not avail to bring on the record for review errors of law occurring on the trial, in the admission, over objection, of alleged incompetent testimony. 2. An error of law, occurring at the trial, must be saved and brought upon the record by bill of exceptions taken at the trial term. ERROR to the Superior Court of Montgomery county. Plaintiff below, defendant in error, brought an action for damages for alleged trespass upon and injury to her real estate, claimed to have been committed by defendant below. The answer denied the trespass, averring a verbal license to enter upon the land and do the acts complained of. The reply denied the alleged license. By law, the Superior Court of Montgomery county was required to hold monthly terms, except in the months of July, August, and September. The action below was tried to a jury at the January term, 1874, and resulted in a verdict for plaintiff. The defendant made a motion for a new trial, which motion was continued from term to term, until the May term, 1874, at which term the motion was determined adversely to defendant. To this ruling defendant excepted and took a bill of exceptions, which is the only one in the record. The record shows that at the January term, during the progress of the trial, plaintiff' offered testi Dayton v. Hinsey. mony which was objected to, and admitted to go in evidence over defendant's objection. To this ruling defendant excepted, but took no bill of exceptions at the trial term, showing the nature and character of the testimony objected to. In this motion for a new trial, defendant assigned several reasons. The second and seventh only have any relation to the question to be determined in this case. In the second, the alleged objectionable testimony appears to be set out; the seventh is but a recital of the sixth subdivision of section 297 of the code, providing that a new trial may be granted when the verdict is not sustained by evidence, or is contrary to law. Judgment was entered on the verdict, and this action in error is prosecuted here to obtain a reversal of that judg ment. Alfred A. Thomas, for plaintiff in error. Conover & Craighead, for defendant in error: 1. This bill of exceptions, being confined exclusively to alleged error in the action of the court below, at the trial term, in admitting testimony and in its charge to the jury, and not having been taken or filed at that term, can be of no avail to the plaintiff in error. Kline and Berry v. Wynne, Haynes & Co. 10 Ohio St. 223: The M. & C. R. R. Co. v. Strader & Co., 29 Ohio St. 448; Musser's Ex'rs v. Chase, 29 Ohio St. 577. 2. The noting on the journal of an exception to the action of the court in overruling the motion for a new trial, at the May term, is not the "signing and sealing" of a bill of exceptions, as required by the statute. No facts or grounds of exception to the action of the court appear in such entry, nor is such exception embodied in the bill of exceptions filed at the May term, nor does the whole record raise any question of law, the only bill of exception in the case relating simply to alleged errors of the Dayton v. Hinsey. court, at the January term, and to which no exception was taken at that term. 3. If such entry, under any circumstances, might be held sufficient to justify this court in reviewing the action of the superior court, at its May term, in overruling the motion for a new trial, this is not such a case. The record of the court below must embody all of the testimony in the case, all of the charges or other actions of the court, that the reviewing court, upon the record of the whole case, may determine whether substantial justice has been done between the parties, or whether injury has intervened to the prejudice of the plaintiff in error, which made it the duty of the court below to set aside the verdict of the jury. Cases in 29 Ohio St., before cited. Bolen v. The State, 26 Ohio St. 371; Parmlee v. Adolph, 28 Ohio St. 15. ASHBURN, J. The material errors assigned all rest upon the question whether the trial court erred in the admission of testimony to the jury, over the objection thereto of defendant below. If, from the state of the record, that question can not be considered, the other errors assigned can avail nothing. In cases where the ground of error is that the verdict is against the law and the evidence, and the bill of exceptions, taken on overruling a motion for a new trial, contains all the evidence, and the entire charge of the court, a reviewing court will look to the whole case, thus made, with a view of determining whether, upon a consideration of all the evidence and law of the case, a new trial ought to have been granted, in order to do substantial justice. M. & C. R. R. Co. v. Strader & Co., 29 Ohio St. 448. Such is not the state of the case on this record. The bill of exceptions taken on overruling the motion for a new trial is the only one in the case. It professedly does not contain all the testimony offered on the trial, nor the entire charge of the court, and, for this reason, a reviewing Dayton v. Hinsey. court would not be authorized in holding that the lower court erred in overruling the motion for a new trial. Where it clearly appears from the record, by means of some process known to the law, that the trial court has erred, to the prejudice of plaintiff in error, in the admission or rejection of testimony, its judgment will be reversed. In such case, the judgment of the reviewing court is not invoked by the overruling of the motion for a new trial, but for the error of law occurring in the course of the trial, saved by the injured party, at the time and in the mode provided in the code. Where the alleged error appears in the entry made on the decision, no bill of exceptions is necessary; when it does not so appear, and is extrinsic thereto, the alleged error must be brought upon the record by some legal process. The alleged error, if error occurred, intervened at the trial term, in January, 1874. The motion for a new trial made at that time, was continued for four terms of court before final disposition, and no bill of exceptions to the ruling of the court, upon any question of law whatever, was taken at the trial term. As already stated, the only bill of exceptions in the record, is the one taken at the May term to the decision of the court overruling the motion for a new trial. It is not matter of complaint that the court erred in denying the mover a new trial, for the reason that the verdict is against the weight of evidence, but that the court erred in admitting incompetent testimony to go to the jury, over the objection of defendant below, and for error in the refusal of the court to charge as requested and in the charge given, grounded upon the alleged incompetent testimony. No bill of exceptions was taken to that portion of the charge now claimed to be erroneous. To make and save an objection and exception to a decision of the court on a question of law arising during the trial, the party claiming to be prejudiced by the ruling, must bring the question on the record by bill of exceptions taken and perfected at the trial term. This will be manifest, upon an examination of the pro Dayton v. Hinsey. visions of the code, which governed questions of this nature, at the time this case was tried. Section 290 declares an exception to be "an objection taken to a decision of the court upon a question of law." Section 291 provides that the party objecting to the decision "must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term." Section 292 declares "the exception must be stated, with so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible." Section 293 provides for cases, where, from the nature of the entry, the grounds of exception appear in it. In such case," the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts." Section 294 declares that, "where the decision is not entered on the record, or the grounds of objection do not appear in the entry, the party excepting must reduce his exception to writing, and present it to the court for allowance," etc. By these provisions of the code, one who objects to the decision of the court on a question of law, not within the discretion of the court, arising in the progress of the trial, and which is extrinsic to the record, must save the question of law for review, by bill of exceptions to be perfected within the time limited by the statute. If it arises upon the admission or exclusion of evidence on the trial, exception must be taken at the time the decision is made, and, within the time limited, be reduced to writing, "with so much of the evidence as is necessary to explain it," etc. Such bill of exceptions when signed and sealed by the judge, becomes a part of the record in the case, and in this way the testimony and question ruled upon come upon the record for review, and can not otherwise appear for fhat purpose. This, we think, is the rule prescribed by the code, and in force at the time of this trial. As to the necessity for such, or a similar rule, there can be no reasonable controversy. The whole matter, and all questions occurring at the trial, should be closed, while all the facts and circumstances are |