171 N.E.2d 716
No. 36425Supreme Court of Ohio.
Decided January 18, 1961.
Appeal — Dismissal — No bill of exceptions — Filing within time of covers only — Containing thereon dates of filing and notice and judge’s signature — Transcript of testimony inserted after time.
1. Covers only, which purport to be a bill of exceptions but on which are only the dates of filing and notice to opposing counsel and the signature of the trial judge and between which there is no record of the proceedings in the trial court, do not constitute a bill of exceptions.
2. A motion to strike a bill of exceptions for not having been filed within the 40 days required by Section 2321.05, Revised Code, should be sustained, where, subsequent to the 40th day from the final order appealed from, the full transcript of the testimony was inserted between the covers theretofore filed.
APPEAL from the Court of Appeals for Stark County.
The parties are designated herein as they were in the trial court.
Plaintiff recovered a personal-injury verdict in the Common Pleas Court of Stark County, judgment was entered thereon, and defendant’s motion for new trial was overruled.
Within the time limited therefor, defendant filed her notice of appeal in the Court of Appeals and again within time, to wit, on June 2, 1959, filed in the Court of Common Pleas what purported to be a bill of exceptions. This purported bill of exceptions contained on one of the covers thereof the signature of the trial judge and the information (1) that it had been filed on June 2, 1959, (2) that notice thereof had been given to plaintiff’s counsel, (3) that it had been transmitted to the trial judge on June 12, 1959, and (4) that it had been received and corrected by him, transmitted back to the clerk and filed by the clerk in the Court of Appeals, all on June 12, 1959.
Plaintiff subsequently filed in the Court of Appeals a motion which reads in part as follows:
“Now comes Evelyn Carnes, the plaintiff-appellee herein, and moves the court for the following orders, to wit:
“1) To strike the bill of exceptions and dismiss the appeal of the defendant-appellant for want of prosecution by reason
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of the failure of the defendant-appellant to file her bill of exceptions with the trial court not later than forty (40) days after the notice of appeal, which was filed May 13, 1959, in accordance with R.C. 2321.05. A stamped cover purportedly containing a bill of exceptions was filed on June 2, 1959, or twenty (20) days after the filing of the notice of appeal, and it contained none of the proceedings of the trial court; and that subsequent to the forty (40) days from the filing of the notice of appeal herein, or after June 22, 1959, there was inserted in the stamped cover without the knowledge of the plaintiff-appellee, the bill of exceptions purportedly contained therein on June 2, 1959, all of which is contrary to law.”
Plaintiff tendered proof of the facts stated in her motion, which tender the Court of Appeals refused. The Court of Appeals overruled plaintiff’s motion to strike the bill of exceptions and to dismiss the appeal, heard the appeal on its merits and reversed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Mills Mills and Mr. James H. Emsley, for appellant.
Messrs. Carson, Vogelgesang Sheehan, for appellee.
BELL, J.
The appeal to the Court of Appeals was on questions of law. Three errors found by the Court of Appeals as the basis for its reversal could have been exemplified only by a bill of exceptions. Therefore, if there was no bill of exceptions properly before the Court of Appeals, the plaintiff’s motion to dismiss should have been sustained as to those errors. Tenesy v City of Cleveland, 133 Ohio St. 251, 13 N.E.2d 122: In Matter of Lands, 146 Ohio St. 589, 67 N.E.2d 433; State, ex rel. Cliffview Land Co., v. Maloney, Commr. and Inspr. of Bldgs., 166 Ohio St. 45, 139 N.E.2d 40.
In his concurring opinion, Judge Putnam of the Court of Appeals said:
“All of us concur in the overruling of the motion to dismiss
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the appeal because due to the pressure of work and court procedure only the bare covering of the bill of exceptions was filed within the 40-day time limit provided by statute and was thereafter supplemented by the inclusion therein of the full transcript of the testimony.”
In the opinion of the writer, this statement by Judge Putnam is fairly susceptible of the interpretation that it is at least a tacit concession on the part of the Court of Appeals that the covers only of what purported to be a bill of exceptions were filed in the Court of Common Pleas within the 40 days. Obviously, if this is true, the insertion of the full transcript was made, if not after the so-called bill had been filed in the Court of Appeals, at least after the time limited for filing the bill in the Court of Common Pleas.
If, however, the words in the above quotation, including and following the word, “because,” are merely a restatement by Judge Putnam of the reasons advanced by counsel for plaintiff for dismissing the appeal, then a question was presented to the Court of Appeals as to whether a bill of exceptions was before it.
The only argument advanced by counsel for defendant as a means of attacking the alleged deficiency in the bill of exceptions is that plaintiff should have filed her exceptions to the bill within the ten days permitted therefor by statute. Section 2321.06, Revised Code. The Court of Appeals apparently took the same view because in its journal entry such court said, in part: “The court upon consideration finds that the question raised by appellee’s motion as to the bill of exceptions should have been raised in the trial court and is not timely here, and that the trial court’s certificate is conclusive.”
We do not agree with this conclusion of the Court of Appeals. Section 2321.02, Revised Code, defines an “exception” as an objection taken to a decision of a trial court upon a matter of law. Since a bill of exceptions containing a record of all the “exceptions” claimed was first authorized by the Statute of Westminster the Second, 1 Eng. Stats. at L., 206 (13 Edw., 1, Ch. 31), its object has been to put the decision or decisions objected to upon record for the information of the court having
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cognizance of the cause on review. It is a foregone conclusion that two pieces of covering material put nothing on record that can furnish any information to a reviewing court.
If there has been nothing filed in the way of a bill of exceptions, there is certainly nothing to which opposing counsel can file exceptions. And we do not deem it opposing counsel’s duty to call to the attention of his opponent the fact that nothing has been filed by filing exceptions to nothing.
In our opinion, if that which was filed herein within the 40 days limited by Section 2321.05, Revised Code, consisted only of covers which purported to be a bill of exceptions but on which were only the dates of filing and notice to opposing counsel and the signature of the trial judge and between which there was no record of the proceedings in the trial court, such was not a bill of exceptions.
Plaintiff made a tender of proof that the insertion of the transcript of proceedings in the trial court between the covers of the so-called bill of exceptions was done after the bill was filed in the Court of Appeals. If that is the fact, the Court of Appeals should have dismissed the appeal if the errors complained of could be exemplified only by a bill of exceptions. It at least should have allowed proof and counterproof, if any, on the circumstances surrounding the filing of the bill of exceptions. The cause is remanded to the Court of Appeals for that purpose and this court does not pass on the other assignments of error at this time.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and HERBERT, JJ., concur.
O’NEILL, J., not participating.
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