
    METCALS REFINING CO. v. SHERMAN
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 7, 1927.
    First Publication' of- this Opinion.
    Syllabus by Editorial Staff.
    148. BILLS OF EXCEPTIONS — 465. Error Proceed-
    Where bill of exceptions is not filed within period of forty days required by statute, motion to dismiss proceedings will not lie. Motion should be to strike bill of exceptions from files.
    Error to Common Pleas.
    Judgment affirmed.
    Nadler & Nadler, Youngstown, for Refining Co.
   FULL TEXT

FARR, J.

This cause is here upon a motion to dismiss this proceeding in error upon the ground that the Bill of Exceptions was not filed within the time required by law. Upon the issues being joined in the court below the cause came on to be' heard and resulted in a judgment from which eiror is sought to be prosecuted here. It is conceded that the Bill of Exceptions was not filed within the period of forty days required by statute, Sec 11564 GC., and for this reason a dismissal of the proceeding is sought. Such order could not be made because the motion should have been to strike the Bill of Exceptions from the files. That would leave the petition in error pending. It follows, however, that no eiror being disclosed by the other files in this cause, the judgment is accordingly affirmed.

(Pollock and Roberts, JJ., concur in the judgment.)  