Doe ex dem. Irwine v. Brown , 6 Ohio St. (N.S.) 12 ( 1856 )

J. R. Swan, J.

This case was tried in the district court of Knox county, at May term, 1853, and a verdict and judgment then entered in favor of the defendant, the court having overruled a motion for a new trial. Afterward, on the 26th day of May, 1854, a bill of exceptions was ordered to be filed as of May term, 1853, by one of the judges of the district court, and the bill is appended to the record of the ease. This cause is now before us on petition in error, and the errors assigned are based upon what appears in the bill of exceptions so filed.

We can not deem the bill of exceptions a part of the act of the district court at their May term, 1853. It was filed about a year after that term. Under what circumstances, or whether under any circumstances, a bill of exceptions may, by order of a court, at a subsequent term, be made available by a nunc pro tunc order, it is not necessary in this case to determine.

Bills of exceptions are frequently made up and signed after a 13] trial, and sometimes after the adjournment of the *court; but in such cases the parties are concluded by the record, which shows that the bills were perfected on the trial, and then formed a part of the record. There is no objection to this practice. But in the case before us it appears from the record that the bill of exceptions was filed by order of one of the judges of the district court about a year after the trial; and whether in or out of term does not appear. The grounds upon which he directed the bill to be filed are also omitted.

The errors being assigned upon matter not in the record, the judgment below must be affirmed.

Bartley, C. J., and Brinkerhoee, Bowen, and Scott, JJ., concurred.