94 Ohio St. 252 | Ohio | 1916
The authority for the filing of a bill of exceptions is found in Section 11564, General Code, which is as follows:
“When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the exception is to the decision of the court on a motion to direct non-suit, or to arrest the evidence from the jury, or for a new trial for misdirection to the jury, or because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion for a new trial, or the decision of the court, when the motion for a new trial is not filed.”
In the case under consideration the motion for a new trial was overruled on the 10th day of December, 1915. The bill of exceptions was filed with the clerk of the court of appeals on the 21st day of March, 1916, one hundred and two days after the motion for a new trial was overruled. The requirement in Section 11564, supra, that “the party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion,” is mandatory. (Pace v. Volk, 85 Ohio
But it is insisted that the order of certification of this court made it mandatory upon the court of appeals to allow and sign a bill of exceptions regardless of the fact that the statutory time for the filing of the same had expired. In cases of public or great general interest where error has probably intervened, the order of this court is that the court of appeals certify its record to this court; that is, the record of the court of appeals made up according to law. Although the jurisdiction of this court is conferred by the constitution, yet the method of exercising it may be provided by law. Section 11564, supra, was in force when the constitutional amendments of 1912 became effective, and not being inconsistent with any of their provisions has continued in force. It prescribes a mode of procedure as to the taking of exceptions and fixes the time within which a bill can be filed. The bill becomes an original paper in the case, within the meaning of Section 12263, General Code, and it is not necessary that there be a journal entry ordering such bill to be made a part of the record in order to entitle it to be considered by a reviewing court. (Strauch v. The Massillon Stoneware Co., 71 Ohio St., 295.) But
It is said that in cases like the one under con
Our holding is that the filing of a bill of exceptions is controlled by statute, and the relator not having complied with the same is not entitled to relief.
Writ refused.