State v. Wildermuth

Ohio Court of Appeals

State v. Wildermuth

89 N.E.2d 705, 86 Ohio App. 307, 55 Ohio Law. Abs. 372, 41 Ohio Op. 349, 1949 Ohio App. LEXIS 648

CourtOhio Court of Appeals

DecidedAugust 13, 1949

Docket148

StatusPublished

Cited by1 cases

This text of 89 N.E.2d 705 (State v. Wildermuth) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Wildermuth, 89 N.E.2d 705, 86 Ohio App. 307, 55 Ohio Law. Abs. 372, 41 Ohio Op. 349, 1949 Ohio App. LEXIS 648 (Ohio Ct. App. 1949).

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Opinion

By the Court.

This cause is submitted on motion of the state to dismiss the appeal and affirm the judgment of the trial court upon the ground that *308 the bill of exceptions was not filed within the time prescribed by law.

The defendant was charged, tried and convicted of operating a motor vehicle while under the influence of intoxicating liquor. A motion for new trial was filed, which was overruled May 7, 1949. The bill of exceptions was not filed in the trial court until June 14, 1949. Thus it appears that the bill was filed more than 30 days after the overruling of the motion for a new trial. The period of time prescribed in-Section 13445-1, General Code, within which a bill of exceptions must be filed in a criminal case, is mandatory. Where the bill is not filed within the statutory time, the trial judge is without authority to allow and sign the bill. Luff v. State, 112 Ohio St., 102, 146 N. E., 892; Kenney v. State, 18 Ohio Law Abs., 76; State v. McFarland, 36 Ohio Law Abs., 97; State v. Kenney, 43 Ohio Law Abs., 63. It appearing that there are no errors complained of which can be considered in the absence of a bill of exceptions, the reviewing court has no alternative but to affirm the judgment. 2 Ohio Jurisprudence (App. Rev.), 1713, Section 920; Luff v. State, supra; State v. Kenney, supra; Leitzy v. State, 6 Ohio Law Abs., 427.

An examination of the record shows that the defendant duly filed a notice of appeal and, also, within 30 days after sentence and judgment, filed in this court his motion for leave to appeal and a petition on appeal requesting the court to review the order and judgment of the trial court. Presumably the motion and petition were filed pursuant to Section 13459-4, General Code, which provides for such procedure after 30 days from sentence and judgment. No showing is- made which would require this court to give favorable consideration to the motion or petition, both of which are denied. The judgment is affirmed.

Judgment affirmed.

Miller, P. J., Hornbeck and Wiseman, JJ., concur.

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By the Court.

This cause is submitted on motion of the state to dismiss the appeal and affirm the judgment of the trial court upon the ground that *308 the bill of exceptions was not filed within the time prescribed by law.

The defendant was charged, tried and convicted of operating a motor vehicle while under the influence of intoxicating liquor. A motion for new trial was filed, which was overruled May 7, 1949. The bill of exceptions was not filed in the trial court until June 14, 1949. Thus it appears that the bill was filed more than 30 days after the overruling of the motion for a new trial. The period of time prescribed in-Section 13445-1, General Code, within which a bill of exceptions must be filed in a criminal case, is mandatory. Where the bill is not filed within the statutory time, the trial judge is without authority to allow and sign the bill. Luff v. State, 112 Ohio St., 102, 146 N. E., 892; Kenney v. State, 18 Ohio Law Abs., 76; State v. McFarland, 36 Ohio Law Abs., 97; State v. Kenney, 43 Ohio Law Abs., 63. It appearing that there are no errors complained of which can be considered in the absence of a bill of exceptions, the reviewing court has no alternative but to affirm the judgment. 2 Ohio Jurisprudence (App. Rev.), 1713, Section 920; Luff v. State, supra; State v. Kenney, supra; Leitzy v. State, 6 Ohio Law Abs., 427.

An examination of the record shows that the defendant duly filed a notice of appeal and, also, within 30 days after sentence and judgment, filed in this court his motion for leave to appeal and a petition on appeal requesting the court to review the order and judgment of the trial court. Presumably the motion and petition were filed pursuant to Section 13459-4, General Code, which provides for such procedure after 30 days from sentence and judgment. No showing is- made which would require this court to give favorable consideration to the motion or petition, both of which are denied. The judgment is affirmed.

Judgment affirmed.

Miller, P. J., Hornbeck and Wiseman, JJ., concur.

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89 N.E.2d 705, 86 Ohio App. 307, 55 Ohio Law. Abs. 372, 41 Ohio Op. 349, 1949 Ohio App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wildermuth-ohioctapp-1949.

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