Opinion
No. 3871
Decided November 23, 1945.
Appeal — Court of Appeals — Time for filing assignments of error, etc. — Effect of failure to comply with Rule VII — Appellant entitled to additional time for filing briefs, when — Failure to file bill of exceptions within time — Not ground for dismissal of appeal, when.
1. The spirit of Rule VII of the Courts of Appeals, providing for dismissal for failure to file assignments of error, briefs and bill of exceptions within the time fixed, is not to penalize a party who has exercised due care in attempting to comply with the rule.
2. Where appellant complies with Section 12223-8, General Code, relative to the preparation and filing in the Court of Appeals of the transcript of the docket or journal entries and original papers necessary to exhibit the errors complained of, but the trial court fails to file the transcript in the Court of Appeals, the appellant may be given additional time within which to file briefs.
3. Failure to file a bill of exceptions within time does not require a dismissal of an appeal, where some or all of the errors assigned may be exemplified upon the record independent of the bill.
APPEAL: Court of Appeals for Franklin county.
ON MOTION to dismiss.
Mr. J. Paul McNamara and Mr. H.E. Gingher, for the motion.
Mr. R.W. Kilbourne, contra.
This cause is submitted on motion of appellee to dismiss the appeal for two reasons: First, because appellant, Mary M. Von Schmidt, failed to file her assignments of error and briefs in accordance with Rule VII of the rules of this court, and, second, because of failure to file a bill of exceptions in the trial court within 40 days after the overruling of the motion for new trial.
The motion will be overruled.
Rule VII provides for dismissal for failure to file brief within the time fixed, unless good cause is shown why the appeal should not be dismissed.
Sometime since, counsel for appellant tendered an entry granting leave to file assignments of error, brief and bill of exceptions, in which we interpolated, "if duly filed in the trial court" on or before the first day of December 1945. That entry has been approved by two members of the court, but has not been spread upon the record because counsel for appellee had objected to such action. The objection was followed by the motion under consideration.
The spirit of Rule VII is not to penalize a party who has exercised due care in attempting to comply with the rule. The court determined, when it approved the aforementioned entry, that counsel for appellant had complied with Section 12223-8, General Code, respecting the preparation and filing in this court of the transcript of the docket or journal entries and original papers or transcript thereof as are necessary to exhibit the error complained of. The clerk at the time of the approval of the entry extending time for filing of brief had not filed the transcript in this court. In such situation, it is our opinion that it is only fair to appellant that she be given additional time, pursuant to the entry, within which to file briefs, etc.
It appears that a bill of exceptions may not be filed because the time within which, under the statute, it is required to be filed has elapsed. This alone, however, does not require a dismissal of the appeal as the errors assigned, or some of them, may be exemplified upon the record independent of the bill.
The motion will, therefore, be overruled and the entry, which we have heretofore approved, will be journalized, granting appellant until December 1, 1945, within which to file her assignments of error and brief.
Exceptions will be saved to counsel for appellee.
Motion overruled.
HORNBECK, P.J., MILLER and WISEMAN, JJ., concur.