
    Orren W. Potter et al. v. James Myers.
    1. A petition in error to reverse the final judgment in an action, brings before the reviewing court the whole record in the cause; and where,, pending the proceeding in error, the court whose judgment is under review makes an erroneous order striking the bill of exceptions on which the proceeding in error is founded from the record, such order may be reviewed in the pending proceeding, and the filing of an independent petition in error to reverse such order ought not to be .allowed.
    2. Where parties have consented to an entry on the journal of the court during the term, showing that a bill of exceptions was duly perfected, they will be estopped from afterward showing that the journal entry is-untrue.
    3. If the bill of exceptions is perfected in all other respects, the mere omission to file it with the clerk during the term will not invalidate it. When duly perfected, and ordered to be made part of the record, the-bill of exceptions is in law to be regarded as part of the record, whether it comes into the actual possession of the clerk during the term or not.
    Motion for leave to file a petition in error to reverse the-judgment of the District Court of Ottawa county.
    At the October term, 1873, the Court of Common Pleas-of Ottowa county, in an action in which James Myers was plaintiff and Eber B. Ward was defendant, the court found the issues in favor of the plaintiff; and, having overruled a motion for a new trial filed by the defendant, rendered, judgment on such finding against the defendant.
    The defendant excepted to certain rulings of the court -during the trial, and likewise excepted to the overruling of the motion for a new trial.
    The journal entry of the cause at that term, which contains the finding and final judgment, also contains the following : “And thereupon came the defendant, and moved the court for a new trial herein, for the reasons stated in the motion on file, which motion came on to be heard, and was overruled by the court; to all of which rulings and judgment of the court, the defendant excepts, and on his motion, the bill of exceptions is signed by the court, and ordered to be made part of the record in this case.”
    A petition in error was filed in the district court to obtain the reversal of the judgment, on the ground of.alleged ■erroneous rulings of the court of common pleas contained 'in the bill of exceptions.
    Pending this proceeding in error, the defendant in error, Myers, who was plaintiff in the original action, filed a motion in the court of common pleas to strike the bill of ex•ceptions from the files, on the ground that it was not signed by the judge during the term at which the cause was tried; .and also to strike out from the journal entry that part which stated that on motion of the defendant the bill of ■exceptions was signed by the court, and ordered to be made part of the record in the cause. j ,
    Notice of the motion was given to the plaintiffs in error, who claim as representatives of Eber B. Ward, he having died since the rendition of the judgment.
    The parties appeared at the hearing of the motion, and the court ordered the bill of exceptions to be stricken from the files, but overruled so much of the motion as asked a ■change in the journal entry.
    The plaintiffs in error excepted to the striking of the bill ■of exceptions from the files, and took a bill of exceptions .showing all the evidence given on hearing the motion.
    The substance of this evidence is that at the January term, 1875, of the comb of common pleas, the judge who tried the cause handed the bill of exceptions to the clerk signed and sealed by the judge, and directed the clerk to file it as of that date. Thereupon the clerk did as directed; and it appears that the first time he saw the bill of exceptions was when he received it from the judge. One of the attorneys for Myers testified that the bill of exceptions was not signed during the term at which the cause was "tried.
    There was no evidence that the journal entry in regard to the bill of exceptions was procured surreptitiously; nor that such entry was not made with the knowledge and consent of both parties. Nor did it appear that the bill of exceptions was not prepared and presented to the court during the trial term.
    At the next term of the district court following the making of the order last named of the court of common pleas, Myers, the defendant in error, suggested a diminution of the record; and on a transcript of the record of the court of common pleas being certified to the district court, •showing that the bill of exceptions had been ordered to bo ■stricken from the files, the district court, on motion of the defendant in error, dismissed the petition in error, on the ground that there was no bill of exceptions showing the •errors complained of.
    Leave is now asked to file a petition in error in this court, to reverse the judgment of the district court.
    The plaintiffs in error filed a second petition in error in •the district court, the object of which was to obtain the reversal of the order of the court of common pleas directing the bill of exceptions in the case to be stricken from the files.
    Both cases in error were heard in the district court at the same time; and the order of the court of common ■pleas striking the bill of exceptions from the files was affirmed.
    Leave is now also asked to file a petition in error to reverse the last named judgment of the district court.
    
      Scribner, Surd § Scribner, for the motion:
    
      So/ner Gooclwin, contra.
   White, J.

The filing of the second petition in error in the district court was neither necessary nor proper. The object of the second petition was to reverse the order striking the bill of exceptions from the record. There-was but one case, and one final judgment which it was sought to reverse. Under the first petition in error the-whole record was brought before the court for review, and the power of the court over it was as ample as if the petition in error had not been filed until after the order striking out the bill of exceptions had been made.

For the same reason a single petition in error is all that, is required in this court to review the action of the district court, both in affirming the order of the common pleas- and in dismissing the petition in error.

We are unanimous in the opinion that the court of common pleas erred in ordering the bill of exceptions to be-stricken from the files as no part of the record.

The ground on which the action of the court is sought-to be justified, is that the bill of exceptions was not signed by the judge and filed with the clerk during the trial term...

The date of filing with the clerk is shown by his indorsement on the bill. The time of affixing the signature-of the judge is sought to be proved by the testimony of witnesses.

The journal of the court shows an entry in the cause at the trial term, from which it appears that on the defendant’s motion the- bill of exceptions was signed by the court,, and ordered to be made part of the record in the cause:

On the hearing of the motion there was nothing to show that this entry was not made under the direction of the-court, with the knowledge and consent of the parties. The motion, in so far as it sought the setting aside or modification of the entry, was overruled, thus leaving the entry in full force. While the entry stood, it was conclusive upon the parties. Doe ex dem. Irvine v. Brown, 6 Ohio St. 12.

If such an entry should be put upon the journal surreptitiously, it ought to be set aside. The perfecting of a bill of exceptions is a matter which concerns both parties, and both ought to have the opportunity of examining it, if desired, before it is finally settled.

But where parties have consented to a journal entry during the term showing that the bill was duly perfected, they will be estopped from afterward showing that the entry is untrue.

It is, however, contended that the journal entry does not show that the bill of exceptions was filed during the term, and it is claimed to be indispensable that it should have been so filed.

We do not think so. If the bill is perfected in all other respects, the mere omission to file it with the clerk during the term will not invalidate it. When duly perfected and ordered to be made part of the record, it is, in law, to be regarded as part of the record, whether it comes into the actual possession of the clerk during the term or not.

Leave is granted to file the petition asking the reversal of the judgment of the district court dismissing the petition in error. That judgment is reversed, as well as the' judgment affirming the order of the court of common pleas, and the cause is remanded for hearing on the errors assigned on the bill of exceptions.

Leave to file the second petition in error is refused.  