State v. Evans

5 Ohio Cir. Dec. 339

• Court: Hamilton Circuit Court
• Decided: July 15, 1896
• Status: Published

Opinion

Swing, J., Cox, J.,

concurring:

The facts in this case show that on the last day on which the bill of exceptions could be presented to opposing counsel, plaintiff's attorney came to the office of defendant’s attorney and submitted to the attorney the oral testimony, written out in proper form, and also offered to him an envelope containing numerous exhibits which had been offered in evidence in the case, but which exhibits were in no manner attached to the bill of exceptions. Defendant’s attorney refused to accept the bill of exceptions, on the ground that the bill was not a complete bill of exceptions, whereupon plaintiff’s counsel said he would attach the exhibits and took the written testimony and the exhibits, and on the following day, which was on the forty-first day after the exception was taken, presented to defendant’s counsel the bill of exceptions in controversy ; which bill, it is admitted, is in proper form, containing all the oral testimony and written evidence presented at the trial. This bill the defendant’s counsel refused to receive on the ground that it was not presented within the time required by law, and the trial judge refuses to sign it for the same reason.

A. C. Shattucky for the Writ. Thomas L. Michie, Contra.

This is a suit in mandamus to require the judge to sign the bill.

We are of the opinion that the judge was right in refusing to sign the bill. We think the bill of exceptions required to be presented to ■ opposing counsel should be a bill of exceptions complete in form. If purporting to contain all the evidence, it should contain in the form of a bill of exceptions all the evidence which counsel presenting the bill claimed the evidence to be. It does not follow that the bill presented to counsel for examination should in fact contain all the evidence for opposing counsel or the judge might add to the bill certain items of evidence omitted, or might strike from it certain matters improperly there; but this fact does not relieve the counsel from preparing and presenting to opposing counsel within the time provided by law, a bill of exceptions complete and proper in form in that it shall contain, if it purports to contain all the evidence, all that he claims to be the evidence and not a part merely.

This we regard as a very strict and technical holding, but our supreme court has always construed the statutes relating to bills of exceptions strictly. Writ refused.

Judge Smith excepts to this ruling of the court on the ground that 1m thinks there was a substantial compliance with the law.