Jefferis v. Nevers

107 N.E.2d 400, 62 Ohio Law. Abs. 171, 1951 Ohio App. LEXIS 941

• Court: Ohio Court of Appeals
• Decided: February 17, 1951
• Docket: No. 685
• Status: Published

Opinion

OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to “strike the bill of exceptions from the file and to dismiss the within cause for the reason that said bill of exceptions was not filed within 40 days of the entry of the Common Pleas Court overruling the motion of the defendants for a new trial.”

Judgment was entered on July 1, 1950. The bill of exceptions was filed with the Clerk of the Common Pleas Court on August 16, 1950, so that more than 40 days elapsed between the date of the overruling of the motion for a new trial and the filing of the bill of exceptions in the trial court.

Sec. 11564 GC fixing the time for filing the bill of exceptions as not later than 40 days after the overruling of a motion for a new trial has been held, without exception, to be mandatory as to the foregoing provision. Tenesy v. Cleveland, 133 Oh St 251; Humphrey v. Bailey, 16 Abs 1; Teegarden v. Teegarden, 80 Oh Ap 79; State v. Alessandro, 56 Abs 554, 93 N. E. (2d) 310. The bill of exceptions must be stricken from the files.

The motion asks that the appeal be dismissed. The appeal is on questions of law. An examination of the Assignments of Error is convincing that no one of them may be exemplified without recourse to the bill; without the bill there is nothing to adjudicate. The appropriate order is that the judgment from which the appeal is prosecuted be affirmed. Tenesy v. Cleveland, supra.

It will be so ordered.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.