Opinion
No. 138
Decided March 26, 1947.
Bill of exceptions — Time prescribed for filing mandatory — Section 11564, General Code — Failure to file within time ground for motion to strike — Appeal.
1. The filing of a bill of exceptions in the trial court within 40 days after the overruling of a motion for new trial, as required by Section 11564, General Code, is mandatory.
2. A bill of exceptions which is not filed in the trial court within 40 days after the overruling of a motion for new trial will be stricken by the appellate court on motion.
APPEAL: Court of Appeals for Shelby county.
ON MOTION to strike.
Mr. Royon G. Hess and Mr. R.E. Boller, Jr., for appellant.
Mr. E.J. Garmhausen and Mr. Richard P. Faulkner, for appellees.
This cause is submitted on motion of appellees to strike the bill of exceptions on the ground that it was not filed within the time prescribed by law.
There is no memorandum in support of the motion, but it may be assumed that the motion is directed to the facts of record in the trial court. The motion for new trial was overruled December 30, 1946. The bill of exceptions was filed in the trial court on February 15, 1947, which was 47 days after the overruling of the motion for new trial.
The filing of the bill of exceptions in the trial court within 40 days after the overruling of the motion for a new trial, as required by Section 11564, General Code, is mandatory. Pace v. Volk, 85 Ohio St. 413, 98 N.E. 111; McEvoy v. Ripley, 24 Ohio Law Abs., 678; Bridgewater v. Boyles, 29 Ohio Law Abs., 362; Lutz v. Lutz, 74 Ohio App. 517, 60 N.E.2d 67.
A bill of exceptions which is not filed in the trial court within 40 days after the overruling of the motion for a new trial will be stricken by the appellate court on motion. Kennedy v. Mancini, 22 Ohio Law Abs., 607; Eubank v. Industrial Commission, 59 Ohio App. 189, 17 N.E.2d 416; Seifer v. Industrial Commission, 29 Ohio Law Abs., 52.
The motion to strike will be sustained.
Motion sustained.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.