Kennedy v. Mancini

OPINION

By HORNBECK, J.

Submitted on motion of appellee to dismiss the bill of exceptions and the proceedings, which is an appeal on questions of law.

It is conceded by the parties that the bill of exceptions was filed with the trial court forty-two days after the overruling of the motion for a new trial. It is claimed by counsel for the appellee and by counsel amicus curiae that §11564, GC, is mandatory and controlling and that as the bill was not filed within the time therein prescribed, namely, forty days, it should be stricken from the files.

There is no dispute nor could there be that prior to the enactment of the new appellate code, the former §11564 GC had been uniformly construed to be a mandatory requirement. But it is claimed by counsel for the appellant that the spirit of the new appellate act is to liberalize procedure on review and that reading §11565 GC in conjunction with the remainder of the new appellate code, and particularly §12223-8 GC thereof and Rule 7 of the Court of Appeals of Ohio requires the determination that there is a discretion vested in this court touching the time within which the bill of exceptions may be filed with the trial court.

At the outset it should be noted that the procedural steps incident to the completion of proceedings on appeal and the requisite steps incident to the filing of a bill of exceptions in the trial court and in the appellate court are separate and distinct subjects of consideration in the code. It was not unusual under the former procedure to have proceedings in error instituted and terminated by judgment where no bill of exceptions was filed. It is only in the instances enumerated in the statute, §11564 GC, that a bill is required. In this case there is no doubt that the appeal has been properly perfected and is regularly pending in this court. It will be noted that §11564 GC as now appearing in the code has not been materially changed as it relates to appeal on questions of law. Thus, it will require the same construction as heretofore unless something is to be found in the appellate code which requires a different interpretation. This it is urged is found in §12223-8 GC:

“The transcript of the testimony or bill of exceptions or so much thereof as may be necessary for said appeal may be filed within such time as is provided for in the rules of court.”

The Court of Appeals of Ohio, pursuant to the authority of the section enacted Rule 7 which provides in part that,.

“Unless otherwise ordered by the court or a judge thereof, briefs shall be filed as follows: counsel for appellant shall, within fifty days after filing notice of intention to appeal, file with the clerk his assignments of error and briefs and bill of exceptions.”

It is obvious that both §§12223-8 GC and the Rule have application to steps to be taken in the Court of Appeals, whereas §11564 GC applies exclusively to the trial court and its language is mandatory. This court has discretionary authority as to the time when the bill of exceptions may be filed in this court if the provisions of §11564, GC, a's to the time of filing in the trial court have been met. If we were proceeding under §12223‘-8 GC the facts here presented might move the court to exercise its discretion favorably to the appellant.

The motion to strike the bill of exceptions will be sustained.

BARNES, PJ, and BODEY, J, concur.