Pierce v. Isabel , 70 Ohio App. 385 ( 1941 )

On September 13, 1941, motion was filed by Grace M. Pierce, the administratrix of the estate of George Pierce, asking the court not to consider the bill of exceptions for the reason that the record shows that no motion for a new trial was filed within three days after the verdict of the jury as required by Section 11578, General Code. The movant claims that on May 11, 1940, four days after the verdict, a motion for a new trial was attempted to be filed; that the assignment commissioner of the Municipal Court set his stamp back to May 10; that counsel for the defendants made a statement seeking to justify the filing on the fourth day by stating that on the previous day he had handed the motion for a new trial to the assignment commissioner who stamped it as filed on May 10th, whereas as a matter of fact it was filed on May 11th, the fourth day.

This matter was before the court below which, upon hearing said motion held, the court having decided that the motion for new trial was filed on the third day after the verdict was rendered, it is not necessary to consider motion to allow motion for new trial to be filed out of rule, and the court then overruled the motion to strike the bill of exceptions.

The court in its decision this day filed has reviewed this case and has affirmed the judgment of the court below. The reasons given by the court make the question raised upon this motion simply a moot question, and the motion to strike the bill of exceptions is therefore overruled.

It has been held in substance that where a litigant presents to the officers of the court a motion within rule day, but the same was not filed due to some act of the officials, that such act will not render the filing of the motion otherwise in time, subject to dismissal as not being filed within time. Porter v.Rohrer, 95 Ohio St. 90, 115 N.E. 616; The Cincinnati TractionCo. v. Ruthman, 85 Ohio St. 62, 96 N.E. 1019; Hornbeck Adams on Trial and Appellate Practice in Ohio, 268, Section 152.

Motion overruled.

HORNBECK and BARNES, JJ., concur.