ON APPLICATION FOR REHEARING
Decided May 15, 1935
By THE COURTThe above entitled cause is now being determined on application of defendant in error for rehearing.
This application is set out under five separate specifications. We will take these up in the order presented.
Memoranda and citation of authorities accompany the application.
GROUND 1. “IS THE OWNERSHIP OF THE BONDS IN QUESTION BY -THE BANK A NECESSARY. ELEMENT IN THE RIGHT OF THE PLAINTIFF TO.' RÉ-*583COVER FOR FRAUD IN INDUCING THEIR PURCHASE.”
The answer to this question would be no. But it is not pertinent to the issue. In the instant case the action is for rescission and under this character of action ownership is an essential element.
GROUND 2. “ARE THE BOOKS OF A THIRD PARTY NOT BOOKS OF ORIGINAL ENTRY UNIDENTIFIED BY THE PERSON MAKING THE ENTRY COMPETENT IN EVIDENCE AGAINST THE DEFENDANT IN ERROR OR IN FAVOR OF THE PLAINTIFF IN ERROR.”
In support of this ground counsel cite §11495, GC; and also Jones on Evidence, §§1799, 1788 and 1787.
The section of the Code cited relates to circumstances under which adverse parties may not testify and the exceptions thereto. The evidence proffered and rejected was not of an adverse party and therefore we fail to see that the section has any application.
The sections cited from Jones on Evidence refer to the general rule as to the acceptance in evidence of original books of account and we think, if anything, sustains our position rather than advancing a contrary view.
We adhere to our original finding.
GROUND 3. “CAN THE COURT OF APPEALS OF THE STATE OF OHIO FIND FACTS AND RENDER A FINAL JUDGMENT IN A PROCEEDING IN ERROR WHERE THE TRIAL COURT IN ITS OPINION ON A MOTION FOR A NEW TRIAL FINDS THERE ARE DISPUTED QUESTIONS OF FACT WHICH SHOULD BE LEFT TO THE JURY.”
In support of this ground counsel cite 12 decisions of the Ohio Suprenie Court. We are unable to find that these cases are applicable.
Tire principle of law is well grounded that a reviewing court always has the right to determine whether or not there is any evidence upon a vital issue in the case. Our - conclusions and reasons are fully set out in the original opinion.
GROUND 4. “CAN THE COURT OF APPEALS FIND THAT A FACT DOES NOT EXIST, WHICH IS ESTABLISHED BY POSITIVE AND UNCONTRADICTED TESTIMONY, WITHOUT IMPEACHMENT OF THE WITNESS, RENDERING THEIR TESTIMONY UNWORTHY OF CONSIDERATION.”
Most assuredly a reviewing court could not and should not find that a fact does not exist where its existence is established by positive and uncontradicted testimoney. However, if counsel will carefully read the original opinion it will be disclosed that it was our opinion that one of the essential elements of plaintiff’s case was not proven.
GROUND 5. “SHOULD THE COURT BE OF THE OPINION THAT FURTHER PRESENTATION OF THIS MATTER WOULD NOT BE OF ANY VALUE TO THE COURT, THEN WE WOULD LIKE A CLARIFICATION OF THE DECISION OF THE COURT OF ■ APPEALS AS TO THE EXACT GROUND OF REVERSAL, AND IF SUCH-REVERSAL BE BASED ON THE WEIGHT OF THE EVIDENCE, AS TO WHETHER OR NOT THERE WAS A CONCURRENCE OF ALL THREE JUDGES.”
Counsel in his memoranda says that the copy of opinion furnished him did not disclose that there was a concurrence of the other members of the court. This was an inadvertence in transcribing. The original opinion on file in our office shows that the same was concurred in by all members of the court.
Counsel is incorrect in his conclusion that we based our finding for final judgment on the weight of the evidence. We did not so do.
It was our finding that the trial court erred in not directing verdict on defendant’s motion by reason of a failure of proof on an essential element.
The application for rehearing will be denied.
BARNES, PJ, and HORNBECK, J, concur.