ate from and independent of the railroad company. As to all property owners, except the railroad company, the court found all jurisdictional facts involved in that hearing with the city, and that it was entitled to appropriate the property, and that a jury should be impanneled to assess the compensation and damages to the owners of the property; and there, as to all owners of property, except the railroad company, the record stops. On the same day this entry was made on the issues made between the railroad company and the city:

"This cause coming on further to be heard on the application filed herein by the city of Akron to appropriate and condemn the lands described therein against the defendants therein named, and the amended answer to said application filed herein by the Cleveland Terminal & Valley Railroad Company (each and all the other defendants having failed to plead herein, and having failed to appear and contest the right of said city to appropriate said lands described in said application), the city of Akron and the Cleveland Terminal & Valley Railway Company introduced their evidence and the cause was argued by counsel and submitted to the court. It is therefore considered and adjudged by the court that the application of said city of Akron to appropriate said lands of said the Cleveland Terminal & Valley Railroad Company be and the same hereby is dismissed at its costs, but without prejudice to its right to commence a new proceeding for the appropriation of the property of said railroad company and the appropriation of the property of any or all of the other defendants herein named, for the extension of said Prune street."

To all of which finding and judgment of the court exceptions were taken. A petition in error was filed in the court of common pleas to reverse so much of this judgment as added to the judgment of the court "without prejudice to its right to commence a new proceeding," but leaving the balance of the judgment stand.

The court of common pleas reversed that part of the judg ment, leaving it to stand as an absolute dismissal of the case, without the modification "without prejudice," and the correctness of the ruling of the court of common pleas is now before this court for review.

Akron v. Cleveland T. & V. R. R. Co.

[Vol. IV, N. S.

No bill of exceptions was taken on the hearing of this issue before the probate court; there was no finding of fact by that court; and we are wholly ignorant of the facts upon which that judgment of the probate court was based. What we do know is, that after the evidence had been introduced, the court dismissed the proceedings without prejudice. Why, we do not know.

It is clear that this judgment, as a whole, can not be reversed upon this record. Indeed, there is no claim that it can be. No such claim was made in the court of common pleas. That court was only asked, in effect, to modify the judgment. We are satisfied that that judgment must stand as rendered, or the whole judgment set aside; and as it is not asked to set aside the whole judgment, it necessarily follows that it must stand as rendered. The judgment is an entirety. The dismissal of the proceeding, without prejudice, has an entirely different legal effect from the dismissal of a case with prejudice, or without that qualification. The probate court never rendered the latter judgment. That court adjudged that the proceeding should be dismissed without prejudice, but never held that, under the facts, the case should be dismissed without that qualification. To strike out that qualification leaves a judgment that that court never rendered; and there are no facts upon this record from which this court, or the court of common pleas, could determine that that court intended to render such judgment, or that such judgment was the proper judgment to be rendered.

We are aware that a reviewing court, on the reversal of a judgment under proper conditions, may render such judgment as the trial court should have rendered in the case; but that must be done either upon the state of the pleadings, or upon a finding of fact, or upon facts brought before the court in a bill of exceptions, so the court can have before it the facts upon which to base such judgment. There were no such facts in this There was no finding of fact at all by the trial court. All we know is, that the case was heard, argued by counsel and judgment rendered, dismissing the case without prejudice.

case.

Whether some technicality arose, or for what reason that was done, does not appear.

So we hold, as this record stands, no reversal or modification of that part of the judgment was authorized by the court of common pleas.

We, therefore, hold the court erred in modifying the judgment of the probate court, and the judgment of the court of common pleas is reversed, and that of the probate court affirmed. C. F. Beery, for plaintiff.

Allen, Waters & Andress, for railroad company.

EVIDENCE AS TO LOST DEED.

[Circuit Court of Cuyahoga County.]

MATILDA SLIPMAN V. CHARLES TELSCHOW ET AL.

Decided, February 23, 1903.

Lost Instruments-Evidence Necessary to Establish Execution of. Under the rule of the Supreme Court as to the evidence necessary to establish a deed alleged to have been lost, it is not sufficient to show that an order was left with a certain abstract company for the drawing of such a deed, or that such a person saw a deed supposed to cover the property in the suit, but who did not observe as to whether it was properly witnessed and executed.

MARVIN, J.; HALE, J., and WINCH, J., concur.

This case comes into this court by appeal from the judgment of the court of common pleas.

The petition sets out that the plaintiff is the owner of a certain piece of real estate in this city, and describes the same, with the averment that the defendants claim some interest therein, and the prayer is that her title to said land may be quieted.

To this petition the defendant, Charles Telschow, answers, denying that the plaintiff is the owner of the whole of said real estate, but avers that he is the owner of an undivided onehalf thereof.

Slipman v. Telschow et al.

[Vol. IV, N. S.

The defendant, Wilhelmina Telschow, answers that she is the wife of the defendant, Charles Telschow, and as such has an interest in said estate to the extent of her inchoate right to dower in an undivided one-half interest, which she says is owned by the said Charles.

Whatever rights the plaintiff has in this property came to her by descent from her former husband, Fred Slipman, who died intestate and without issue in July, 1898. In 1892 the property in question was purchased jointly by the said Fred Slipman and the defendant, Charles Telschow, and a deed of the same was executed and delivered to them for the property.

There is no dispute here that the plaintiff is the only heir of her deceased husband, and as such is the owner of an undivided one-half of these premises. The whole dispute is as to the remaining one-half. The claim on the part of the plaintiff is that in 1894, on June 7, a warranty deed of this undivided one-half, which theretofore was the property of the defendant, Charles Telschow, was executed by the said Charles and his wife, Wilhelmina, and delivered to the said Fred Slipman. This deed was not recorded and is not produced in court. Its absence is explained by the plaintiff by saying that immediately after its delivery to her husband he brought it to their home and exhibited it to her; that she complained that her name nowhere appeared in the deed; that her husband became angry and tore the deed, if not entirely into two parts, very nearly so, and then left the room; that she with court plaster fastened the two parts together, went to the room of her mother, which was in the same house, and there exhibited it to her mother, Mrs. Blaha, her sister, Emma Koss, and her brother, John Blaha; that they made some examination of it, but such examination was very hasty, as she heard her husband come into the hallway adjoining the room in which she was exhibiting the deed, and she folded the deed, put it into her clothing and thereafter placed it in a drawer in the room where she and her husband lived. She says that two or three years thereafter her husband took the deed from this drawer and said that he placed it in the safe of the defendant, Charles Telschow, and that she has never seen it since. At the time when she says this deed was delivered to

her husband the relations between herself and her husband were strained, and some two years thereafter she brought a suit for divorce against him and went to live with the defendants, the defendant, Wilhelmina Telschow, being his mother, and it is at or about the time of this separation that she says the deed was taken from their home. After a separation of about five months she and her husband went to living together, and so continued up to the time of his death. Both of the defendants emphatically and unqualifiedly deny that any deed from them to Fred Slipman was ever executed by them. They deny that they ever signed any such deed.

On the part of the plaintiff one Harry Van Heining was called as a witness. He testified that in June, 1894, he was in the employ of Cozad, Belz & Bates Abstract Company of the city of Cleveland; that he was at the time a notary public; that a part of the business of said company was the drawing and acknowledgment of deeds; that by a custom of the company, when a deed was to be drawn, if the deed to the parties about to make the new deed was brought into the office of this company a minute or memorandum was made on such deed, indicating the parties to the new deed and the consideration to be expressed in said new deed, and that a number was given to the transaction, which number was minuted on the old deed; that then in a minute book kept by the company an entry was made with a corresponding number, which entry indicated what was to be done with the deed on which this number was written, and then a mark was made upon such memorandum indicating when the transaction, so far as their office was concerned, was completed. The plaintiff then offered in evidence the deed made to Telschow and Slipman in 1892, and this being exhibited to the witness, he stated that a number, to-wit, 45,115, which appears in pencil on the filing side of said deed, was made by him; that this indicated that some memoranda in reference to this deed would be found in the books of the company under a corresponding number. He further testified that a memorandum found on the opposite side of this deed when folded, reading, "Charles and Wilhelmina Telschow to Fred Slipman, $580," was made by him. He then produced a mem