Davies v. New Castle & Lowell Railway Co.

Citations

• 71 Ohio St. (N.S.) 325

Syllabus

<p>Bill of exceptions — Must he filed within forty days, when — Section 5301, Revised Statutes — Substantial compliance therewith — Transmission of hill hy clerk to trial judge — Heed not he hy manual delivery — Court procedure.</p> <p>1. Under tbe provisions of section 5301, Revised Statutes, as passed October 22, 1902, it is incumbent upon tbe party taking a bill of exceptions,- to file tbe same in tbe cause with tbe clerk of tbe court within forty days, after tbe overruling of tbe motion for new trial, or tbe decision of .the court excepted to, where a motion for a new trial is not filed, and having done this be has performed all tbe duties imposed upon him by tbe statute.</p> <p>2. Where tbe record shows that tbe party excepting filed bis bill of exceptions with tbe clerk on tbe fifteenth day ,of August, 1903, that being within the time prescribed for that duty, and that on tbe tenth of September, 1903, the clerk transmitted the same to tbe “court,” and that tbe bill was re* ceived by tbe “court” as shown by his endorsement on the seventeenth day of September, 1903, signed “T. I. Gilmer, Judge of the Court of Common Pleas;” — and where the record further shows that on the eighteenth day of September, 1903, the bill was signed and returned to the clerk of the court, under the endorsement “T. I. Gilmer, Judge,” and that on the same day the bill was received and filed by the clerk — there has been a substantial compliance with the statute, and it is not error to overrule a motion to strike such bill from the files.</p> <p>3. The transmission of the bill by the clerk to the trial judge need not be by personal or manual delivery to him, but may be made in other manner equally safe and reliable, the intent of the law being that the bill reach the trial judge within the statutory period, without opportunity to any one to tamper with or change it.</p>