
    FORTNER, Plaintiff-Appellant, v. ADAMS et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2290.
    Decided August 9, 1954.
    Otterbein Creager, Dayton, for plaintiff-appellant.
    Webb R. Clark, Dayton, for defendants-appellees.
   OPINION

By THE COURT:

Submitted on motions of defendants-appellees to strike the bill of exceptions from the files and to dismiss the appeal.

This is an appeal on questions of law. The bill of exceptions was not filed within forty days after final entry was journalized in the trial court, to conform to the provisions of §2321.05 R. C. The motion to strike the bill of exceptions will be sustained.

The defendants-appellees move to dismiss the appeal on the ground that the errors assigned are such as can be disclosed only by a bill of exceptions. We have examined the errors assigned, together with the brief of counsel for the plaintiff-appellant, and find that the bill of exceptions would be required to support the three errors assigned.

In Tenesy v. City of Cleveland, 133 Oh St 251, it was held that: “Where such bill of exceptions is not filed in the trial court within the time so prescribed, and the errors assigned are such as can be disclosed only by a bill of exceptions, the reviewing court has no alternative but to affirm the judgment.”

An entry may be drawn striking the bill and affirming the judgment.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.  