Opinion
Decided March 10, 1930.
Bills of exceptions — Narrative bill may be prepared, when — Judge need not personally correct, but only indicate necessary corrections — Section 11566, General Code — Trial judge may order complete transcript of testimony attached to bill, when.
1. Defeated party may in first instance prepare exceptions in narrative form, preserving evidence bearing on rights of parties.
2. Trial judge need not personally correct exceptions found incorrect, but must indicate corrections necessary for true bill (Section 11566, General Code).
3. Trial judge finding exceptions containing evidence in narrative form was not true bill and could not be corrected, properly required complete transcript of testimony to be attached to bill (Section 11566, General Code; Court of Appeals Rule 1).
IN MANDAMUS.
Mr. David B. Carpenter, for relator.
Messrs. Wilkin Wilkin, for respondent.
This is an original action in mandamus brought in this court to require the defendant, Carl V. Weygandt, as judge of the court of common pleas in Cuyahoga county, to allow and sign a certain bill of exceptions in a case tried by him, or to correct the bill, or cause it to be corrected, and to sign and duly certify the same.
It appears from the record that the relator, Elba Adams, was plaintiff in the court of common pleas in an action against the Nally Discount Company and others, which action was on trial for three days before the respondent, as common pleas judge, and a jury, and that, when the plaintiff in that case rested, a motion was made by the defendants for a directed verdict, which, on consideration, was granted. Thereafter a motion for a new trial was duly filed and overruled, whereupon the plaintiff prepared and filed, in due time, a bill of exceptions, in narrative form, of thirty typewritten pages, purporting to contain all of the evidence introduced at the trial. After giving the bill of exceptions consideration, the trial judge entered a memorandum at the foot of the bill concluding with the following:
"The court finds that said purported bill is not a true bill and that the necessary corrections and additions can not be made except by the court undertaking to prepare a new bill of the trial which consumed three days. Said purported bill is therefore disallowed."
Numerous written objections were made to the bill of exceptions by counsel for the prevailing party, and in the answer filed in this court by the judge he avers, among other things, that all of these objections were sustained, and that so much testimony was introduced that no memory could retain the full details, nor could any reasonable trial notes furnish sufficient assistance to aid the court in determining as to the objections filed and submitted for allowance. He further avers that the bill as tendered contained the usual recitation, in the certificate attached thereto, that it was a true and correct bill and contained all of the evidence offered at the trial, which he refused to sign for the reason that it was false, and he avers that the prevailing parties offered to instruct the court stenographer to transcribe and submit for the use of the court, or for the amendment and correction of the bill, a typewritten transcript of all testimony offered in said cause upon payment of the reasonable charges of said court reporter for his services in so doing. Respondent further avers that he thereupon instructed the relator herein that he would settle and sign and certify the bill of exceptions if and when the relator would cause a full transcript of the testimony of all the witnesses in the trial court to be transcribed and attached to and made a part of the bill of exceptions, which relator refused to do.
While the ordinary practice in the preparation of a bill of exceptions in a case involving the weight of the evidence, or in which there is a directed verdict, is to have the stenographer prepare a typewritten transcript of all the testimony introduced at the trial, yet unquestionably a defeated party desiring to prepare a bill of exceptions is entitled in the first instance to prepare the same in narrative form, preserving of course therein all of the evidence which bears upon the rights of the respective parties. This the relator evidently attempted to do, but it is contended that the bill as thus prepared does not contain all of the evidence introduced, nor fairly state the evidence which it does contain. The bill being found by the trial judge not to be correct, his duty is enjoined by Section 11566, General Code, and it is to correct the bill within five days thereafter, or within such extended time as may be fixed. We do not understand that a fair interpretation of this section requires the trial judge to personally make the correction, but it manifestly was his duty, if the bill could reasonably be corrected, to indicate to counsel the corrections that should be made in order to make the bill a true bill. The duty of the trial judge in such case is clearly stated in Beebe, Judge, v. State, ex rel., 106 Ohio St. 75, 139 N.E. 156, in which it is held that, if the trial judge is unable to make the correction from memory, it is his duty to refresh his memory from available information, including that which may be obtained from the stenographer. The case cited also holds that it is the duty of the trial judge to assist in securing and safeguarding the rights of a litigant, even his right to prosecute error from the court's judgment, and that the court must use reasonable effort to correct a bill which is incorrect. See, also, State, ex rel. Dory, v. Dickson, 2 Ohio App. 218.
This court is entirely in accord with the views expressed in the cases above cited as to the duty of the trial judge in the settling of a bill of exceptions, but there may come a time when it is apparent to the trial judge that a complete transcript of all the evidence introduced is necessary in order to adequately raise the question in a reviewing court. It is easy to see in a case in which there has been a directed verdict that a little shading of the testimony in condensing the same, perhaps done inadvertently, might so change the situation as to require a reversal of the judgment. The court, in its indorsement on the bill of exceptions, had already in effect found that the bill was in such condition that it could not be corrected, and that it would be necessary to prepare a new bill. This situation is covered by the latter part of Rule 1 of the Court of Appeals as printed in 2 Ohio App. 219, cited supra, in the following language:
"If either party desires it, or the court or judge so directs, any part or all of the evidence shall be reproduced verbatim."
The trial judge evidently followed that rule, or at least applied its principle, and directed a complete transcript of the testimony taken at the trial. The answer which he filed in this court avers that he informed the relator that he would allow, sign, and certify the bill when thus completed and attached to and made a part of the bill as presented. This averment is not denied in the reply, and we think the court was justified in refusing to sign the bill until a transcript was prepared as suggested by him.
For the reasons given, a judgment will be entered denying the writ of mandamus and dismissing the petition.
Writ refused.
WILLIAMS, J., concurs.
Judges WILLIAMS and RICHARDS of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.