Findlay Brewing Co. v. Brown

62 Ohio St. (N.S.) 202

• Court: Ohio Supreme Court
• Decided: March 6, 1900
• Status: Published

Opinion

By the Court :

The ground for the motion to strike the bill of exceptions from the files is “that the same does not appear by the record herein to have been presented to opposite counsel.”

Either one of two objections is fatal to the motion, viz:

1. In an error proceeding to the judgment of the circuit court the sufficiency of a bill of exceptions taken in the common pleas cannot be raised in this court on a motion to strike the bill from the files. If the circuit court considered the bill when it should have disregarded it, that is an error which, like other errors, may require a reversal of the judgment,^ but to take up and dispose of the question here on a motion would be to advance the cause and try it by piece-meal.

2. The fact (which appears affirmatively by the record), that the bill was presented to the court within proper time, and the same having been examined, allowed and signed, is filed and made part of the record, raises the presumption that the requirement as to submission to opposite counsel had been duly complied with, although the record in that respect is silent. The rule announced in Heddleson v. Hendricks, 49 Ohio St., 297, remains the law notwithstanding changes in the statute.

Motion overruled.