Nowman v. Nowman , 8 Ohio Law. Abs. 429 ( 1930 )

HAMILTON, J.

There is no bill of exceptions filed in the case.

The fixing of fees in such case is within the sound discretion of the trial court. Whether or not the trial court abused its discretion in the amounts awarded must be determined on the facts bearing on the question. These questions of fact can only be presented to the Court in an error proceeding in a bill of exceptions.

It is further argued that the plaintiff in error had no opportunity to prepare a bill of exceptions, for the reason that the award was made in chambers, in the absence of the plaintiff in error, and he had no knowledge of the proceeding, nor opportunity to make a record or reserve an exception. This being true, the plaintiff in error 'should have .appealed his case to this Court. Whereupon, we would have been in a position to review the whole transaction and pass upon the amount of fees commensurate with the services.

If the facts are as stated and argued in the brief of counsel for plaintiff in error, he, having elected to bring his case here in ,a proceeding in error and not by way of appeal, the only proceeding which the plaintiff in error would have to secure relief would be by an independent action, directly 'attacking the, judgment as one procured by irregularity in obtaining the judgment, or fraud practiced by the successful party, under favor of 11631 GC.

Since the only question that the court can consider must necessarily be presented in a bill of exceptions, and there being no such bill, the motion to dismiss the petition in error will be granted, and the petition in error is dismissed.

Cushing, PJ, and Ross, J, concur.