
    Findlay Brewing Company v. Brown.
    
      Error proceeding to the judgment of circuit court — ■Sufficiency of bill of exceptions — Cannot be determined by motion to strike from Ales — -Presumption as to proper presentation of bill to court — Court procedure.
    
    1. In an error proceeding to the judgment of the circuit court, the sufficiency of a bill of exceptions taken in the common pleas, can not be determined on motion to strike from the files.
    2. Where it appears by the record that the bill was in proper time presented to the court, and the same having been examined, allowed and signed, is filed and made a part of the record, but the record is silent as to its submission to opposite counsel, the court will presume that such submission was duly made.
    (Decided March 6, 1900.)
    Motion by defendant in error to strike the bill of exceptions from the files in cause No. 6816 on the general docket.
    The record shows that at the January term, 1899, of the court of common pleas of Hancock, to-wit, on the first day of April, 1899, motion by defendant to set aside the verdict and for a new trial was heard and overruled and judgment entered on the verdict in favor of Brown and against the company. Also that defendant was allowed fifty days in which to prepare and file its bill of exceptions. Also that on the third day of May, 1899, an entry was made upon the journal of the court as follows: “On this third day of May, 1899, came the defendant by its attorney, and presented to the court its bill of exceptions, taken upon the trial of said cause, and the same having been examined, allowed and signed, the same is now filed herein and made part of the record.”
    No other entry respecting such- bill appears.
    
      Seney & Johnson, for the motion.
    
      E. W. Tolerton and H. F. Shunclc, contra.
    
   By the Court :

The ground for the motion to strike the bill of exceptions from the files is “that the same does not appear by the record herein to have been presented to opposite counsel.”

Either one of two objections is fatal to the motion, viz:

In an error proceeding to the judgment of the circuit court the sufficiency of a bill of exceptions taken in the common pleas cannot be raised in this court on a motion to strike the bill from the files. If the circuit court considered the bill when it should have disregarded it, that is an error which, like other errors, may require a reversal of the judgment,^ but to take up and dispose of the question here on a motion would be to advance the cause and try it by piece-meal.

The fact (which appears affirmatively by the record), that the bill was presented to the court within proper time, and the same having been examined, allowed and signed, is filed and made part of the record, raises the presumption that the requirement as to submission to opposite counsel had been duly complied with, although the record in that respect is silent. The rule announced in Heddleson v. Hendricks, 49 Ohio St., 297, remains the law notwithstanding changes in the statute.

Motion overruled.  