Chesapeake & Ohio Railway Co. v. Buckeye Union Casualty Co. ( 1946 )

OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to. strike the bill of exceptions and the brief of defendant-appellant from the files.

From affidavits of Mr. Richard T. Rector and Mr. Harold Smith, Deputy Clerk in the office of the Clerk of the Court of Common Pleas of Franklin County, it appears that when on November 30, 1945, the bill was tendered to the trial judge it did not contain the opening statement of counsel for plaintiff to the jury, but that subsequently, namely, on or about December 9, 1945, the Court Reporter prepared and incorporated the opening statement of counsel for plaintiff, and that the amendment was brought to the attention of the trial judge and the bill was refiled upon his instruction. In this situation, assuming the facts to be as stated, it appears that the bill is proper in the form in which it now appears and that it should not be stricken from the files. However, if there is any question about the correctness of the bill as settled and allowed it should be brought to the attention of the trial judge, as he only in the first instance makes determination as to what bills shall be settled and allowed. If counsel for appellee upon the affidavits still maintains that the trial judge did not authorize, settle and allow the bill of exceptions as it now is constituted, it will be remanded to him for further consideration; otherwise, it may remain on file in this Court as it now is and the motion will be overruled.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.