Eubank v. Industrial Commission

Full title: EUBANK, APPELLANT v. INDUSTRIAL COMMISSION OF OHIO, APPELLEE

Court: Court of Appeals of Ohio

Date published: Oct 30, 1937

17 N.E.2d 416 (Ohio Ct. App. 1937)

17 N.E.2d 416

25 Ohio Law Abs. 519

Opinion

Decided October 30, 1937.

Appeal — Bill of exceptions — Time for filing — Section 11564, General Code, mandatory — Motion to strike from files lies, when.

The provision of Section 11564, General Code, requiring a bill of exceptions to be filed in the trial court within forty days from the date of the overruling of a motion for a new trial is mandatory, and where not complied with, a motion will lie in the appellate court to strike such bill of exceptions from the files.

APPEAL: Court of Appeals for Clermont county.

Messrs. Nichols, Speidel Nichols, for appellant. Mr. Herbert S. Duffy, attorney general, and Mr. Eugene Carlin, for appellee.

BY THE COURT.

This matter is before the court on a motion to strike the bill of exceptions from the files in this cause for the reason that it was not filed in the Court of Common Pleas within forty days from the date of the overruling of the motion for a new trial.

The motion for a new trial was overruled by the trial court on June 3, 1937. The bill of exceptions was not filed in the Court of Common Pleas until July 16, 1937, which would be more than forty days from the overruling of the motion for a new trial.

Section 11564, General Code, provides for the filing of the bill of exceptions in the trial court. This must be within forty days from the overruling of the motion for a new trial.

Appellant admits that the bill of exceptions was not filed in the Court of Common Pleas within the forty-day limitation, as provided by the statute, but contends that the section is merely directory, and, notwithstanding the filing out of time, the court may still consider the bill. The provisions of Section 11564, General Code, with reference to the filing of the bill of exceptions, are mandatory, as has been repeatedly held in many cases. There are no cases to the contrary. Pace v. Volk, 85 Ohio St. 413, 98 N.E. 111; Luff v. State, 112 Ohio St. 102, 146 N.E. 892; Brainard Investment Co. v. F.H.L. Corp., 55 Ohio App. 127, 9 N.E.2d 178.

The motion to strike the bill of exceptions from the files is sustained, and since it is admitted by appellant that the only question of error in the case requires the consideration of the bill of exceptions, the judgment will be affirmed.

Judgment affirmed.

ROSS, P.J., HAMILTON and MATTHEWS, JJ., concur.