Amicon v. City Railway Co.

This cause is submitted on motion of defendant-appellee to strike the bill of exceptions from the files for the reason that it was not filed in the trial court within the time prescribed by Section 11564, General Code, and to affirm the judgment of the trial court.

The record shows that the motion for new trial was overruled September 23, 1948, and that the bill of exceptions was filed in the trial court on November 19, 1948, or more than 40 days after the motion for new trial was overruled.

It is well established that the requirement of Section 11564, General Code, that the bill of exceptions be filed not later than 40 days after the overruling of a motion for new trial, is mandatory.

Counsel for plaintiff-appellant has assigned six separate grounds of error in his brief and states that the assignments of error may be summarized as embracing (1) the general charge of the court, (2) the special charges given on behalf of defendant and (3) the weight of the evidence. Manifestly a bill of exceptions is required to exemplify the errors assigned.

The plaintiff contends that Section 11564 permits the court to consider the question whether special interrogatories were properly submitted. Special interrogatory No. 1 was filed with the verdict and attached to the transcript of the docket and journal entries. The plaintiff contends further that this court may consider the exhibits in the case and determine whether special instructions to the jury and the general charge were proper. The point is made that the motion to strike the bill of exceptions from the files can reach only those matters required by Section 11564 to be incorporated in a bill of exceptions. The contention is made that the matters hereinbefore mentioned are not required to be incorporated in the bill of exceptions. The pertinent part of Section 11564 provides that "when the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the objection is * * * for a new trial for misdirection to the jury, or because the verdict * * * is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his objections to writing, and file them in the cause * * *."

Subject to certain exceptions which do not exist in this case, under this section all grounds of objection which do not appear upon the face of the record must be reduced to writing and filed as a bill of exceptions. 2 Ohio Jurisprudence (Rev.), 618, 422, 428, Section 328. If there is nothing before the court except the pleadings, the court is limited to a review of errors presented by the pleadings. 2 Ohio Jurisprudence (Rev.), 578, Section 293. The record as made by the clerk consists of those matters mentioned in Section 11607, General Code, and does not include the matters herein mentioned.

In the absence of a bill of exceptions, this court cannot consider the exhibits nor determine whether the trial court acted properly in giving or refusing to give special instructions to the jury or in giving the general charge. 2 Ohio Jurisprudence (Rev.), 628, 635, Sections 336, 340.

Assuming, without deciding, that the question whether the court acted properly in submitting special interrogatory No. 1 is properly before this court for determination, we would be required to find that the answer to the interrogatory is in accord with the general verdict; if the interrogatory consisted of a mixed question of fact and law, as contended by plaintiff, no prejudicial error resulted in its submission in view of a general verdict for the defendant.

The motion to strike the bill of exceptions from the files is sustained (Kennedy v. Mancini, 22 Ohio Law Abs., 607; McEvoy v.Ripley, 24 Ohio Law Abs., 678) and the judgment of the trial court is affirmed. Tenesy v. City of Cleveland, 133 Ohio St. 251, 13 N.E.2d 122; In the Matter of Lands, 146 Ohio St. 589, 67 N.E.2d 433.

Judgment accordingly.

WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.