Wilson v. Sneed

OPINION

By HORNBECK, J.

Submitted on motion of appellee to dismiss the appellant’s ap.peal on questions of law for failure to file bill of exceptions and -briefs under Rule VII of this court.

On December 26. 1942, an entry was filed, dismissing appellant’s appeal on questions of law and fact and ordering the appeal retained on questions of law only and fixing thirty days for the preparation and settlement of a bill of exceptions, “and the filing of briefs to follow as per rule”.

This motion presents a new question under Rule VII of this •court. Rule VII was drawn with special application to appeals on questions of law which in the first instance have been so noted. The order fixed thirty days for the preparation and settlement of 'the bill of exceptions which means that within thirty days after 'the judgment entry the bill of exceptions should be filed with the trial judge for settlement and allowance. This settling and allowing of the bill by the trial judge within the time fixed is in all ■particulars like unto the filing of the bill with the trial judge within :forty days of the overruling of the motion for a new trial, or the decision of the court, when a motion for a new trial is not filed, §11564 GC.

Rule VII of our court provides:

“Unless otherwise ordered by the court or a judge thereof, briefs shall be filed as follows:

Counsel for appellants shall, with fifty (50) days after filing notice of intention to appeal, file with the clerk his assignments of ■error, briefs and bill of exceptions. * * *

Upon failure of the appellant to file his assignments of error, briefs or bill of exceptions, as herein required, unless good cause be •shown to the contrary, the cause will be dismissed for want of prosecution, or otherwise disposed of at the discretion of the court.”

Under this rule it will be noted that counsel for appellant has, In the Appellate Court, ten days within which to file assignments of ■error, briefs or bill of exceptions after the forty days, the full time given under §11564 GC, within which to file the bill of exceptions in the trial court.

Interpreting Rule VII with respect to the appeal in the instant case the time within which the bill of exceptions must have been filed in the Common Pleas Court expired on the 26th of January and thereafter, appellant had ten days within which to file the bill or assignments of error, and briefs with the clerk of the Court of Appeals.

It may be that there can be errors assigned which would be apparent on the face of the record and which it would not be necessary to have a bill of exceptions to exemplify.

The time then within which the appellant may file her bill of exceptions, assignments of error, and briefs had not elapsed when the motion do dismiss the appeal on questions of law was filed. The-motion will therefore be overruled.

BARNES, P.J., and GEIGER, J„ concur.