The procedural requirements to bring this case to this court, both by way of appeal and *Page 256 error, have been complied with. Having thus eliminated all possible jurisdictional questions as to the power of this court to review, the parties then submitted the case upon the bill of exceptions, which contains all the evidence introduced in the trial court, whereupon the parties introduced no further evidence.
As we clearly have jurisdiction, and have reached the same conclusion as the trial court upon the weight of the evidence, it would not seem necessary to enter upon a critical consideration of the nature of the action to determine whether the action was as a matter of law appealable were it not for the fact that if the case were appealable it must be considered as brought here for our consideration of the evidence, uninfluenced by any presumption in favor of any prior finding of facts, which might be important in some cases. So, having considered the allegations of the amended petition, we have reached the conclusion that this action must be regarded as an action at law to recover specific property. While no affidavit in replevin was filed, the pleader clearly indicates that it is specific personal property, susceptible of delivery, and money damages that he seeks to recover to complete the relief. The law is entirely adequate for his purposes, and, therefore, no basis for equitable intervention exists. Babcock v. Seitz, Exr., 122 Ohio St. 453, 172 N.E. 275.
Notwithstanding this conclusion, and the fact that the issues were not submitted to a jury, we fail to find error in the record in that regard.
On that subject the record discloses that after the issues were joined by the original petition and the answer thereto, the parties applied to the court "for a determination of the character of the within cause; whether the same is an action at law or a proceeding in equity." On March 13, 1935, the court entered upon its journal a finding that "the action is one *Page 257 seeking specific performance of an alleged contract, is equitable in nature, and triable as an action in equity."
Thereafter, by leave of court, an amended petition was filed; and amended answers were filed thereto, also by leave of court.
On April 11, 1935, the case came on for trial before a judge other than the one that had made the finding as to the character of the cause made by the original pleadings. The bill of exceptions does not show that any demand was made that the issues raised by the amended pleadings should be submitted to a jury for determination. There is a recital in the bill that a jury was "duly impaneled and sworn," but the judgment entry contains a contrary recital that the cause was submitted without the intervention of a jury. In the brief of the defendants in error is quoted what purports to be the opinion of the trial court, in which there is a statement that the court, after hearing arguments, had concluded that the action was one for specific performance, and that the case was "then tried to the court without the intervention of a jury, over the objection of the plaintiff, who claimed that he had a right to a jury trial." It is not clear whether this statement referred to the action of the court on March 13, 1935, determining the character of the action as made by the original pleadings, or to something not disclosed by the bill of exceptions that took place at the trial. We cannot presume the latter in view of the rule that error must affirmatively appear; and otherwise will be presumed not to exist. Furthermore, we are not privileged to go beyond the record in passing upon the action of the trial court, and this opinion is no part of the record.
We hold that the determination of the trial court as to the issues raised by the original pleadings is not prejudicial, even assuming that it was erroneous. The issues raised by those pleadings were never submitted *Page 258 to that court and are not under review in this court. The issues submitted to the trial court and now under review here are those made by the amended pleadings. There was no demand in the trial court that those issues be submitted to a jury for determination. As the record stands, the parties proceeded to try the issues to the court without the intervention of a jury. Under such circumstances the jury was waived. 24 Ohio Jurisprudence, 154 etseq.
The claim of the plaintiff as stated in his amended petition was that he and his brother, Leopold Steigert, entered into a partnership in 1911, which continued until the latter's death in 1933, and that in 1918 it was agreed between them that in consideration of the continuance of their partnership relation, in "case of the death of either one of the parties, all the property of the other, or of such partnersip, should belong to and be the sole and absolute property of the survivor." The amended petition contained a description of specific property, and alleged that "the properties herein enumerated were the properties belonging to said partnership * * * and that the plaintiff alleges that said properties are now owned by him absolutely, by virtue of said contract heretofore mentioned."
The defendants are the administratrix of Leopold Steigert, the executor of Lissette Steigert, who was the mother and sole next of kin of Leopold Steigert, and the brothers and sisters of Leopold Steigert.
The prayer of the amended petition was that the administratrix of Leopold Steigert be required to deliver to the plaintiff the enumerated property as well as all other property of Leopold Steigert, along with all the proceeds and income, and that an accounting be ordered. It concluded with a general prayer.
When consideration of this case was begun, doubt arose as to whether the Common Pleas Court had original jurisdiction of the sort of case stated in the *Page 259 amended petition. This doubt arose by reason of the provisions of Section 8085 et seq., General Code, conferring jurisdiction upon the Probate Court when a partnership in this state is dissolved by the death of one of its members. Those sections provide for an inventory and appraisement by appraisers appointed by the Probate Court, the same to be filed in the estate of the deceased member, the right of the surviving member to elect to take the assets with the consent of the administrator or executor of the deceased partner, upon the approval of the Probate Court; and giving of notes with approved security to such administrator or executor for the purchase price, and for a bond for the payment of the partnership debts. By Section 8091, General Code, it is provided that upon failure of the surviving partner to take the assets, "such executor or administrator forthwith shall apply to a court of competent jurisdiction for the appointment of a receiver for the partnership, who thereupon must proceed to wind it up * * *. The Probate Court shall be a court of competent jurisdiction in the appointment and control of the receiver herein provided for."
By Section 8092, General Code, it is provided that:
"When the original articles of a partnership in force at the death of a partner, or the will of a deceased partner dispenses with an inventory and appraisement of the partnership assets, and with a sale of the deceased partner's interest therein, and such article or will provides for a different mode for the settlement of such interest, and for a disposition thereof different from that provided for herein, such interest shall be settled and disposed of in accordance with the provisions of such articles or will."
What is the proper construction of this section? Of course it must be construed in connection with the other sections relating to the administration of partnerships dissolved by the death of a member. When the task *Page 260 is attempted "many perplexing queries arise in this connection, on which little or no light is thrown by decided cases." Deibel's Ohio Probate Law (3 Ed.), 321. We shall not attempt to construe the section beyond the necessities of the specific facts of this case.
It seems to us that where there is an agreement between the partners that the survivor shall become the sole and absolute owner of "all the property of the other or of such partnership," the Common Pleas Court has jurisdiction to enforce that contract, and that so long as the partnership creditors, if any, or the personal representatives of the deceased partner, take no action, the surviving partner is entitled to the possession of the partnership assets of which he became the owner upon the dissolution of the partnership by the death of the member.
Of course his possession and ownership would be subject to the rights of partnership creditors, who could subject the assets to the payment of such debts at any time, and the decedent's estate could prevent diversion of the assets to any other purpose. But under such circumstances the particular statutory proceedings in the Probate Court would be inapplicable and the partnership affairs would "be settled and disposed of in accordance with the provisions of such articles or will."
The Common Pleas Court having jurisdiction, this court has jurisdiction to review its action in exercising such jurisdiction.
It was claimed by the plaintiff that the agreement upon which he relied was in writing. This writing was not produced at the trial. There was evidence that a writing was among the papers of Leopold Steigert, and the plaintiff endeavored to prove that it was the writing which he claimed had been signed by him and Leopold. All the material evidence related to whether there was a writing, and, if so, what were its contents. *Page 261
The action being against the personal representatives of two decedents, the plaintiff, under the provisions of Section 11495, General Code, was incompetent to testify to any fact which occurred prior to the death of either decedent, with certain exceptions inapplicable here. This section, therefore, prevented the plaintiff from testifying to the contents of this paper that he never saw after the death of Lissette Steigert. It also precluded him from testifying to the handwriting of either decedent. His familiarity with their handwriting would necessarily be based on facts occurring during the lifetime of decedents. When the inquiry was directed to these facts, necessary to qualify the witness to express an opinion, the incompetence of the witness became apparent. Southard, Admr., v.Curson, 13 Ohio App. 289; Hottenstein v. Hottenstein,191 Ind. 460, 133 N.E. 489; Adams v. Edwards, 115 Pa., 211, 8 A. 425;Ware v. Burch, 148 Ala. 529; Palmer v. Savings Bank, 45 Cal. App. 572, 188 P. 302; Van Wagenen v. Bonnot, 74 N.J. Eq. 843,70 A. 143, 18 L.R.A. (N.S.), 400. And without such information having been laid, the evidence itself would have been clearly incompetent even from a competent witness.
No witness other than the plaintiff testified to having read such a writing as that upon which the plaintiff rested his claim. Norma Steigert testified that she read the writing which the plaintiff claimed was the agreement between him and Leopold, but her testimony was that it contained nothing about the survivor taking the property, that it related only to the survivor continuing the business. Other than that plaintiff's testimony, the only evidence favorable to him related to what his mother had said. She had not read the document — could not have read it because of defective eyesight, apparently caused by age — but these other witnesses, who were also members of the family, one of them being a party to this action, and who was incompetent *Page 262 as a witness in this respect, testified that the mother told them that Norma Steigert had read it to her; and, told as read to her, it provided that the survivor was to have all the property. This conversation was supposed to have taken place in the presence of Norma Steigert, Elsie Steigert and Edward Steigert, each of whom denied that it ever took place.
Under these circumstances, we find that the greater weight of the evidence does not prove either that the document existed or that its contents were as claimed by the plaintiff.
We reach the same conclusion as that reached by the Common Pleas Court, that the plaintiff failed in his proof. That judgment, therefore, should be affirmed and the proceedings on appeal dismissed.
Judgment affirmed. Appeal dismissed.
ROSS, P.J., and HAMILTON, J., concur.
ON APPLICATION for rehearing.