171 N.E.2d 751 | Ohio Ct. App. | 1960
Lead Opinion
Appellee has moved to strike the bill of exceptions because it allegedly was filed too late. So far as we can learn, appellant made his request for the bill in proper time. The official court reporter, appointed by the trial court, has filed an affidavit stating that she was ill and unable to make timely compliance with the request. *478
Appellant filed his notice of appeal ahead of the time required and contends that if the time is computed by taking the full periods for the filing of the notice of appeal and the time thereafter for the filing of the bill of exceptions, the latter will be within the rule.
As to this defense, we express no opinion. Appellee has cited decisions holding that there must be strict compliance with the rule as to the time for bills of exceptions, but none of them seems to be strictly in point.
In the case now before us, the reporter was a court-appointed official reporter, upon the public payroll and working under the direct supervision of the court. Everyone agrees that counsel for appellant requested the preparation of the bill of exceptions several days in advance, and the affidavit filed by Mrs. Evelyn Walters, the official reporter, stands uncontroverted in the record. Mrs. Walters, who is a highly efficient and respected member of the staff of Armstrong and Okey, the official reporters, says in simple terms that she was ill and immediately upon her return to work got the bill of exceptions filed.
It has not been shown, nor is it claimed, that counsel for appellant failed to do anything he could do. We do not feel that justice will be served by sustaining the motion, and it therefore will be overruled.
Motion overruled.
Concurrence Opinion
Having reviewed the cases of Cincinnati Traction Co. v.Ruthman,
The courts have never considered a filing of the bill of exceptions in the trial court as a "step required to be taken subsequent to the perfecting of the appeal," as it was something to be done in the trial court rather than in the reviewing court. However, Section
The Legislature made this change with the knowledge that they had previously enacted Section
"An appeal is perfected when written notice of appeal is filed with the lower court * * *. After being perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal is jurisdictional."
While Section
In a county where the lawyers have relied upon the duly appointed court reporters to file the bill of exceptions and where they have faithfully performed this task, surely someone should have the power to do justice in an unusual situation involving statutory court appointees. (Sections
In view of the Supreme Court's attitude as shown in the case of Welfare Finance Corp. v. Estep, supra (