Opinion
No. 5813
Decided January 28, 1958.
Appeal — Assignment of errors and brief — Timely filed, when — Evidence — May not be inserted into record by brief.
1. Where a notice of appeal is filed on October 18 and the bill of exceptions is filed in the trial court on November 7 and is allowed by the trial court and filed in the Court of Appeals on November 18, and where December 7 is a Saturday and December 8 is a Sunday, an assignment of errors and brief filed in the Court of Appeals on December 9 is timely filed under Rule VII of the Rules of the Courts of Appeals (effective prior to January 1, 1958), relative to the filing of bills of exceptions, assignments of errors and briefs.
2. Evidence may not be inserted into a record by means of a brief, and a brief which contains such matter should be refiled with a deletion thereof.
APPEAL: Court of Appeals for Franklin County.
Mr. Lewis F. Byers and Mr. Mac Lee Henney, for appellant.
Mr. Isadore Margulis, for appellee.
Mary L. Tipton, herein called plaintiff, brought an action in the court below against Don Day, herein called defendant, seeking damages for the death of Norma Herren, for whose estate plaintiff is administratrix. At the conclusion of the taking of testimony, the trial court sustained a motion by defendant for a directed verdict. Thereafter, plaintiff made a motion for a new trial, which on October 8, 1957, by journal entry, was overruled by the court below. On October 18, 1957, plaintiff filed her notice of appeal.
It was on November 7, 1957, that plaintiff filed her bill of exceptions with the clerk of the court below, and, on Monday, November 18, 1957, the court below allowed the bill of exceptions and on the same date the bill of exceptions was filed with this court. On Monday, December 9, 1957, plaintiff filed her assignment of errors and brief, and on December 19, 1957, defendant filed a motion in two branches seeking to dismiss the appeal or, in the alternative, to strike the brief of plaintiff from the files. The motion was accompanied by a memorandum, and on December 27, 1957, plaintiff filed a memorandum in opposition thereto.
Counsel for plaintiff and defendant are in disagreement as to when the bill of exceptions was filed. Our examination of the document indicates the two filings thereof were made, one in the court below and the other in this court, as pointed out.
Defendant says that because the bill of exceptions was filed in the Court of Appeals on November 7, 1957, and the brief and assignment of errors of plaintiff was not filed until December 9, 1957, the interval of over 30 days constitutes a violation of Rule VII of the Rules of the Courts of Appeals, which should result in a dismissal of the appeal.
This calls for an application of Rule VII as it existed prior to the amendments of the Rules of the Courts of Appeals effective January 1, 1958. Rule VII, A (1), as then in effect, provided as follows:
"If a bill of exceptions is required, it shall be filed in the cause in the trial court not later than forty (40) days after the perfecting of the appeal by the filing of the notice of appeal, within the time provided by Section 2505.07 of the Revised Code. Section 2321.05, Revised Code.
"Within ten (10) days after a bill of exceptions is settled and allowed by the trial judge and transmitted to the clerk of the trial court or authenticated in manner provided by Section 2321.12, Revised Code, and filed with the clerk of the trial court, appellant shall file such bill of exceptions with the clerk of the Court of Appeals."
As before pointed out, the notice of appeal was filed on October 18, 1957, and, under the above rule, plaintiff had 40 days to file it, not in the Court of Appeals, but in the trial court. In other words, plaintiff had until November 27, 1957, to file the bill of exceptions with the trial court under the above rule. The above rule also provides that an additional ten days may elapse after the bill of exceptions is settled and allowed for transmission to the clerk of the Court of Appeals. Hence, the time for settling and allowing the bill of exceptions was extended until Monday, December 9, 1957, the very day the brief was filed, in addition to the 40 days and the ten days, for the reason that December 7, 1957, fell on Saturday which is a half-holiday, followed by Sunday which is a full holiday.
It was further provided in Rule VII, E, in part as follows:
"Upon failure of the appellant to file his bill of exceptions, assignments of error, briefs or trial briefs as herein required, unless good cause be shown to the contrary, the cause will be dismissed for want of prosecution or otherwise disposed of at the discretion of the court."
The first branch of the motion will, therefore, be overruled.
The second branch of the motion seeks to strike from the files the brief filed by plaintiff, for the reason that it contains what purports to be photostatic copies of certain maps, pictures and written matter, apparently first published in a magazine or magazines. No objection is made to the assignment of errors by this branch of the motion.
We feel this branch of the motion is well taken for the reason that to permit evidence to be inserted into the record by means of a brief amounts to a denial of the right to the adverse party to confront witnesses, to cross-examine such witnesses and to object to the relevancy, competency or materiality of such evidence before the trial court. There are other objections to this practice which need not be detailed here. Suffice it to say the second branch of the motion should be sustained and the plaintiff should be permitted to refile his brief with the objectionable matter deleted.
Judgment accordingly.
PETREE, P. J., and MILLER, J., concur.