Eubank v. Industrial Commission

17 N.E.2d 416, 59 Ohio App. 189, 25 Ohio Law. Abs. 519, 12 Ohio Op. 443, 1937 Ohio App. LEXIS 255

• Court: Ohio Court of Appeals
• Decided: October 30, 1937
• Docket: No 136
• Status: Published

Opinion

OPINION

PER CURIAM

This matter is before the court on a motion to strike the bill of exceptions Irom the flies in this cause, for the reason that said bill of exceptions was not filed in the Court of Common Pleas within lorty oays from the date of the overruling of the motion for a new trial.

The motion for a new trial was overruled by the trial court on June 3rd, 1937, and the bill of exceptions was not filed m the Court of Common Pleas until July 16, 1937, which would be more than forty days from the overruling of the motion for a new trial.

Sec 11564, GC, provides for the filing of the bill of exceptions in the trial court. This must be within forty days from the overruling of the motion for a new trial.

Appellant admits that the bill of exceptions was not filed in the Court of Common Pleas within the forty day limitation, as provided by the statute, but contends that the section is merely directory, and not withstanding the filing out of time, the court may still consider the bill. The provisions of §11564, GC, with reference to the filing of the bill of exceptions are mandatory, as 'has been repeatedly held in many cases, and there are no cases to the contrary. Pace v Volk, 85 Oh St 413; Luff v State, 112 Oh St 102; Brainard Investment Co. v F. H. L. Corporation, 55 Oh Ap 127 (24 Abs 39).

The motion to strike the bill of exceptions from the files is sustained, and since it is admitted by appellant that the only question of error in the case requires the consideration of the bill of exceptions, the judgment will be affirmed.

ROSS, PJ, HAMILTON and MATTHEWS, JJ, concur.