Summary
In Welfare Fin. Corp. v. Estep (1960), 170 Ohio St. 391, 11 O.O.2d 120, 165 N.E.2d 789, the defendant attempted to appeal an adverse judgment.
Summary of this case from Pollock v. RashidOpinion
No. 36096
Decided March 16, 1960.
Bill of exceptions — Must be filed with clerk — Duty of clerk and trial judge — Failure of clerk to transmit to trial judge — Duty directory merely — Party not permitted to suffer by such neglect of duty.
APPEAL from the Court of Appeals for Ross County.
The plaintiff, Welfare Finance Corporation, took judgment on a cognovit note against defendant, Estep, in the Court of Common Pleas. The defendant filed a motion to suspend the judgment and tendered an answer. The motion was overruled because filed out of term. Defendant then filed a petition to suspend and vacate the judgment and tendered an answer. She alleges in her petition as reasons for vacation of the judgment that fraud was practiced by the successful party in obtaining the judgment for more than was due, the defendant not having been summoned or legally notified of the time and place of the taking (Section 2325.01, Revised Code). As a defense, she alleges that there was no consideration moving to her for her signature on the note; that she was induced to sign the note by false representations, known by plaintiff to be false and made with intent to defraud defendant, and she relied upon such representations, believing them to be true; and that there was a failure of consideration.
The trial court, upon hearing, found there was no basis for sustaining the petition of defendant, denied the relief sought, and rendered judgment for the plaintiff.
Defendant filed a notice of appeal and a precipe asking the clerk of courts to docket the case in the Court of Appeals and to transmit the bill of exceptions, when prepared, to the trial court for allowance and then to the Court of Appeals. Defendant also requested the court stenographer to prepare a bill of exceptions. A bill of exceptions was prepared and filed with the clerk within time, but by inadvertence or oversight the clerk failed to transmit the bill to the trial judge for his signature as required by Section 2321.06, Revised Code.
The Court of Appeals, on appeal from the judgment dismissing the petition to vacate the judgment on the note, found that "there is no settled or certified bill of exceptions before it and, in its opinion the judgment appealed from must be accorded the presumption of regularity" and affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. John S. Street, Jr., and Mr. J. Donald Ratcliff, for appellee.
Mr. Tom Reed, for appellant.
The question presented is whether the defendant, having done everything required of her to perfect her appeal, can be precluded from perfecting an appeal and having it heard on the merits, by the inadvertent failure of the clerk of courts to transmit the bill of exceptions to the trial judge for his approval and settlement.
"The general rule that the law will not permit a party to suffer detriment by reason of the neglect * * * of an officer charged with a public duty where such party, in the prosecution of a right, has done everything that the law requires him to do, and fails to attain his right wholly by such neglect * * *, the duty of the officer being one pertaining to such right, has application to a case coming within the purview of Sections 5301 and 5301 a, Revised Statutes [now Sections 2321.06 and 2321.07, Revised Code], providing for the filing, allowance and signing of bills of exceptions." Cincinnati Traction Co. v. Ruthman, 85 Ohio St. 62, paragraph one of the syllabus.
The provisions of Sections 2321.06 and 2321.07, supra, defining the duties of the clerk and trial judge relative to a bill of exceptions which a party has properly filed within time, are, as to the time of performance of such duties, directory only. Pace v. Volk, 85 Ohio St. 413, paragraph one of the syllabus.
The defendant in the instant case should not be precluded from having her appeal heard on the merits for failure of the clerk of courts to perform a ministerial act in connection with the bill of exceptions.
The judgment of the Court of Appeals is reversed, and the cause is remanded to that court for further proceedings according to law.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.