
    Felch, Assignee, v. The Hodgman Mfg. Co., et al. et al.
    
      Motion for neiv trial — Overruled — Fifty days given for bill of exceptions — Record must show bill submitted to trial judge, when — Cotirt practice.
    
    Where fifty days have been given after the overruling of a motion for a new trial for the perfection of a bill of exceptions, it is necessary, with respect to the requirement of its submission to the trial judge or judges, in order to constitute a valid bill, that the record should show affirmatively that the bill was submitted to the trial judge or judges (if within the district or circuit) for his or their signature not less than five days before the expiration of the fifty days allowed for the same.
    (Decided October 24, 1899.)
    
      Error to the Circuit Court of Erie county.
    Motion by defendant to strike bill of exceptions from the flies.
    
      
      H. L. Peeke and George E. Reiter, for the motion.
    
      C. S. Hubbard and C. P. & S. W Wickham, contra.
   By the Court:

The record shows that judgment was entered by the circuit court and a motion for new trial overruled, on April 22,1899, and fifty days allowed plaintiff to prepare, and have allowed, signed and sealed his bill of exceptions. It further shows that on June 9, 1899, the plaintiff presented his bill of exceptions to the court, which, upon examination by the court, “is found to be true and correct, and is by the court hereby allowed, signed, sealed and ordered to be made a part of the record.”

The question is, does this show a compliance with the statute? We hold that it does not. The requirement of section 5302 is: “Provided that where exceptions are not allowed and signed during the progress of the trial, the party excepting shall submit the bill of exceptions to the opposite counsel for examination not less than ten days before the expiration of said fifty days; and unless the trial judge or judges shall be absent from the district or circuit, as provided in section 5301, the same shall be submitted to him or them for his or their signature not less than five days before the expiration of the fifty days. Provided further, that the trial judge or judges may at his or their discretion extend the time for signing such bill of exceptions for a period not exceeding ten days beyond the expiration of said fifty days; which extension must be endorsed on the bill of exceptions by said trial judge or judges.”

To show compliance with the above requirements it should appear by the record affirmatively that the bill was so, and in proper time, submitted to tbe judge or judges, and tbe fact merely of its allowance and signing afterwards by the court does not carry the presumption tbat tbe bill bad been, in proper time, submitted to tbe trial judges.

A distinction to be noted between the case of Railway Company v. Kernochan, Adm’x., 55 Ohio St., 306, and the case at bar is tbis: In tbat case the entry shows tbat “tbis day came the defendant and filed its bill of exceptions, duly allowed, signed and sealed, and the same at its request is ordered to be made a part of the record in this case, all of which is done within the fifty days allowed,” and it was necessarily implied tbat the bill bad been theretofore, and in proper time, presented to, allowed, signed and sealed by the trial judge. In tbis case the record shows only tbat the bill was presented to the court for allowance, signing and sealing on the 48th day after the overruling of the motion for a new trial.

Motion sustained.  