
    ERROR — BILL OF EXCEPTIONS — RECORD—STATUTES.
    [Crawford (3rd) Circuit Court,
    January Term, 1904.]
    Day, Mooney and Norris, JJ.
    A. Strauck v. Massillon Stoneware Co.
    1. Errors Must Appear Upon Record Under Sec. 6709 Rev. Stat., to Confer Jurisdiction.
    The circuit court has jurisdiction only to review, vacate or modify a judgment of the common pleas court for errors appearing upon the record, under Sec. 6709 Rev. Stat.
    2. Question Raised by Motion to Strike Bill of Exceptions Prom Piles of Circuit Court.
    A motion made in the circuit court to strike a bill of exceptions from the flies involves only the question whether the bill was and is a proper part of the record in the common pleas court, and not whether it was properly i filed in that court.
    3. Only Orioinal Papers Which are Part of Record can be Piled Under Sec. 6716 Rev.-Stat.
    Only such original papers as are part of the record in the court below can be filed with a petition in error under authority of Sec. 6716 Rev. Stat. No warrant exists for bringing up original papers which are properly filed in the lower court, but which are not properly a part of the record of tbat court.
    4. Order of Trial Court Making Bill of Exceptions Part of Record Necessary Under Secs. 5302 and 5334 Rev. Stat.
    A bill of exceptions is not a part of the record unless an order is made by the trial court making it a part thereof, which order must be evidenced in the reviewing' court by a proper transcript of the journal; and, in the absence of such order, the bill will, on motion, be stricken from the files of the reviewing court. The mere filing of the bill, with the signature of the trial judge allowing, settling and signing the same, does not, by force of Secs. 5302 and 5334 Rev. Stat., make it part of the record, nor can such order be presumed from the fact of prior allowance and signing by the trial court.
    5. Section 5302 Rev. Stat. (96 O. L. 17) Construed.
    Section 5302 Rev. Stat., as amended October 22, 1902 (96 O. L. 17), dispensing with the necessity of an entry upon the court journal of the settling, allowance and signing of bills of exceptions, and providing that the signature of such bills by the trial judge shall be sufficient evidence of their settling, allowance and signing, does not dispense with any other entry relating to bills of exceptions, nor with the necessity of an order by the trial court making them a part of the record.
    ERROR to Crawford common, pleas court.
    Harris & Sears, for plaintiff.
    Finley & Gallinger, for defendant.
   MOONEY, J.

In the original action the parties were reversed. That action was commenced in the justice of the peace court; was appealed to the court of common pleas; issues were made by the pleadings; the action was tried to a jury; a verdict returned for plaintiff; defendant’s motion for a new trial was overruled, one ground of the motion being that the verdict is not sustained by sufficient evidence. Defendant duly ex-pepted; judgment for plaintiff was entered on the verdict; defendant duly prepared his bill of exceptions and filed the same; a proper entry of the date was made on the appearance docket; the bill was afterwards settled, allowed and signed by the trial j udge.

The defendant afterwards, as plaintiff in error, commenced this proceeding in error to reverse the judgment of the common pleas. All the errors assigned are predicated upon the bill of exceptions. The record shows no order of the trial court making the bill of exceptions a part of the record and for want of such order, defendant in error here moves that the bill of exceptions be stricken from the files of this court.

It is doing no violence to the facts in this case to say that this motion and its proper determination have occasioned the court a very great amount of trouble. This has been increased by reason of the fact that upon critical examination we have arrived at a conclusion at variance with our preconceived notions of the law upon the subject under consideration. However, the only province of this court is to declare the law as it finds it, leaving the work of legislation to the general assembly and all other changes of the law to the Supreme Court. By Sec. 6709 Rev. Stat. this court has jurisdiction to review, vacate or modify a judgment -of the court of common pleas only for errors appearing upon the record. By Sec. 5334 Rev. Stat. the record is required to be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments and all material acts and proceedings of the court, and “the bill of exceptions shall be filed with the pleadings •and papers, but not recorded, unless the court for good reasons shall so order. ’ ’

By Sec. 6716 Rev. Stat. the plaintiff in error “shall file with his petition either a transcript of the final record, or a transcript of the •docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of; and, if •original papers and pleadings are filed, and the final record has not been made, the reviewing court may permit the temporary withdrawal of the originals for a reasonable time, to allow the recording thereof.” From this provision it is held that the only necessity, as indeed the only warrant to file original papers in this court, extends to such original papers as are part of the record in the court below, and that such original papers as are properly a part of the files in that court, but are not properly a part of the record there, are not necessarily nor properly a part •of the files in this court. A motion to strike the bill of exceptions from the files therefore does not involve the question whether the bill was a proper file in the court of common pleas, but does involve the question whether the bill was and is a proper part of the record in that court.

No one will doubt that prior to the act of October 22, 1902 (96 0. Xi. 17), a bill of exceptions, though duly settled, allowed and signed by the trial judge or judges and filed in the cause, did not become a part of the record proper to be considered by a reviewing court in proceedings in error, without an order of the court making the bill a part of the record. Prior to that act it was required that the journal, by proper entry, should show (1) either by direct affirmative statement or by presumption arising from the journal entry, that the bill was duly settled, allowed and signed by the trial judge or judges; and (2) that the court order the bill to be made a part of the record. Felch v. Hodgman, 62 Ohio St. 312 [56 N. E. Rep. 1018], and Riverside Rubber Co. v. Manufacturing Co. 63 Ohio St. 66 [57 N. E. Rep. 958]. In this latter case the first paragraph of the syllabus is:

“In order to entitle a bill of exceptions to be considered by a reviewing court, it must be shown by a proper journal entry that the bill was ordered made a part of the record.”

The ease was one arising in 1897 when Sec. 5334 Rev. Stat., defining what the record shall contain, was in its present form, and when Sec. •5302 Rev. Stat. provided that:

“The bill of exceptions shall be' filed with the pleadings, and, if the party filing the same request it made a part of the records, but not-spread upon the journal; and an entry of the allowance and signing of the same must be entered upon the journal of the court within the time fixed for such allowance and signing.” (89 O. L. 125.)

It will be noted that the sections contain no express requirement that the entry making the bill a part of the record shall be made upon the journal. The provision that the bill shall become a part of the record if the party requests it does not, of itself, require' an entry to' show such request. Smith v. Board of Education, 27 Ohio St. 44. If the mere filing, after allowance and signing, made the bill in fact part of the record, the request would be presumed. It follows, therefore, that the Supreme Court has determined, in view of the provisions of Sec. 5334 Rev. Stat., as it now exists, and of Sec. 5302 Rev. Stat. as it existed prior to October 22, 1902, and when the latter section expressly required an order of the allowance and signing of the bill and was silent as tO' the necessity of an entry ordering the bill to be made a part of the record, that, nevertheless, the bill did not become a part of the record, for purposes of review without an express order of the trial court making it so. In this state of the law the amended Sec. 5302 Rev. Stat. was-passed on October 22, 1902, and is as follows:

“It shall not be necessary to cause an entry to be made upon the-journal of the court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge mentioned in See. 5301a allowing, settling and signing such bill, shall be sufficient evidence of such fact.”

Neither this nor any other amended section expressly dispenses with any other entry relating to bills of exceptions, nor is there now any express requirement of an entry showing an order by the trial court to make the bill a part of the record.

It seems to follow necessarily that if the filing of the bill, after its due signing and allowance and with the necessary entry to show such, signing, allowance and filing, did not make the bill a part of the record before the amendment, the filing of the bill with the signature of the judge, instead of the entry, as sufficient evidence of the fact of allowance, settling and signing, since the amendment will not have that effect. A bill of exceptions since, as well as before the amendment, does not, upon filing, by mere force of either Secs. 5334 or 5302 Rev.. Stat., become a part of the record, and so, under the former section, it requires something more than filing, after settling, allowance and signing, to wit, an order, which, for the purpose, would become and be “a material act and proceeding of the court to make it so,” and of course, all orders and material acts and proceedings of the trial court must be evidenced here by a proper transcript of tbe journal, unless "the statute expressly makes some other showing of such fact sufficient -evidence of it. While in Felch v. Hodgman, 62 Ohio St. 312 [56 N. E. Rep. 1018], a presumption of due allowance and signing by the trial judge was indulged from the subsequent action of the court in ordering the bill to be made a part of the record, in this case it cannot be presumed, from the fact of the prior allowance and signing of the bill, that the trial court subsequently ordered the bill to be made a part of the record.

We feel that, on the authorities, we are compelled to sustain the motion and strike the bill from the files here, and we declare that this action is taken only with extreme reluctance.

The pleadings sustain the judgment and the bill of exceptions being disregarded, we find no error in the record and the judgment is therefore affirmed.

Day, J., concurs; Norris, J., dissents.  