
    No. 740
    AMOROSO v. ANGELO
    Ohio Appeals, Franklin County
    No. 1065.
    Sept. 20, 1923
    This opinion has not been published except in Abstract.
    299A. • PRACTICE.
    Bill of Exceptions — Dismmissed because not filed till 43 days after bill, of exceptions filed — 40 days statute is mandatory — Petition in error filed 67 days after overruling motion for new trial — Available to review other assignments of error — Court may extend rule time for filing brief.
    Attorneys — Powell & Powell, for plaintiff in error; Dana F. Reynolds, for defendant in error.
   BY THE COURT.

Epitomized Opinion

Motion by p'aintiff to strike the bill' of exceptions from the files and to dismiss the petition in error on the ground that they were not filed in time. The bill of exceptions was filed 43 days after the overruling of the motion for a new trial. The statutory requirement that the bill of exceptions shall be filed within 40 days is mandatory. The court has no discretion to extend the time. The bill of exceptions will therefore be dismissed.

The petition in error was filed 67 days after the overruling of the motion for new trial. This being within the 70 days allowed by the statutue the petition in error will remain on file .and will be available to review such assignments of error as may be shown by the record exclusive of the bill of exceptions.

Plaintiff also moved to dismiss the action for failure to fi’e a brief within the period of the rules of practice. The court has discretion to extend- this period. Here the delay did not interfere with the prompt hearing and disposal of the case.

Motion to file the bill of exceptions from the files sustained. Motion to strike the petition in error and briefs from the files and to dismiss the proceedings overruled.  