
    The Riverside Rubber Co. v. The Midland Man’g Co. et al.
    
      Bill of exceptions — Entitled to consideration by reviewing court, when- — Judge cannot extend time for allowance and signing bill, when.
    
    1. 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.
    2. Where it appears by the bill of exceptions, supplemented by the journal entry, that the bill was not presented to the trial judge until the fiftieth day after the overruling of the motion for a new trial (the judge not being absent), the judge is without power to extend the time for the allowance and signing of the bill and his subsequent allowance and signing of the same is without legal effect.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Sandusky county.
    In the common pleas the plaintiff’s motion for new trial was overruled June 28, 1897, and judgment for defendant rendered, to which plaintiff excepted, and plaintiff wras given fifty days in which to prepare, file, have allowed and signed its bill of exceptions, and the journal of the term was ordered kept open for fifty days for that purpose. The bill was presented to opposite counsel in proper time, but was not presented to the trial judge until August 17, 1897, being fifty days after the overruling of the motion for new trial, at which time the judge extended the time for examination and signing of the bill of exceptions ten days, and endorsed the same on the bill. On August 23, 1897, the judge allowed and signed the bill. Thereupon, on the same day, (being in the vacation of the court between the April term and the September term), an entry, directed by the trial judge, was. placed upon the journal as follows: “Be it remembered that on this 23d day of August, 1897, this cause came on for hearing upon application for allowance and signing of the bill of exceptions heretofore prepared and submitted to the court, it being agreed by counsel and the court finding that said bill of exceptions was presented by counsel for plaintiff to opposing counsel on the 7th day of August, 1897, at 5:30 o’clock P. M., and not before, and was presented to Hon. S. A Wildman, trial judge, on the 17th day of August, 1897, and not before, (said judge not having-been absent from said district at any time after said trial), and said court having, on the said 17th day of August, 1897, for the purpose of examining and signing said bill of exceptions, extended the time ten days, which extension was duly endorsed upon said bill of exceptions at the time, and the court having examined said bill of exceptions and finding the same to be a true bill of exceptions, did on the 23d day of August allow and sign the same, and ordered it to be filed but not spread upon the journal, to which extension of' time and the endorsing of the same, and to the allowance and signing of said bill, defendants by their counsel then and there duly excepted.”
    The bill of exceptions itself shows that it was signed on August 23, 1897, and it also shows that it was presented to the judge “at the time and in the manner stated in the journal entry thereof.”
    In the circuit court defendant interposed a motion to strike the bill of exceptions from the files, and the-court “being fully advised in the premises, and having-heard the arguments of counsel,” ordered the bill stricken from the files, and the cause being heard on the petition in error, transcript and original papers and pleadings, the judgment below was affirmed. And the plaintiff now and here alleges that the order striking the bill from the files was erroneous.
    
      Gilbert E. Stewart; D. K. Watson and Chittenden é Chittenden, for plaintiff in error.
    The plaintiff in error claims that the circuit court erred in striking plaintiff’s bill of exceptions from the files, and in affirming the judgment of the court below, for the following reasons:
    
      a. The action of the trial judge in vacation was not subject to review by the circuit court.
    
      b. A judge in vacation cannot authorize the embodiment in an entry of a finding of facts. The record shows that this motion was not heard upon evidence. The record further shows that the bill of exceptions was signed by the trial judge within the time fixed by statute as extended by him in conformity to the statute, and this is conclusive. Heddleson v. Hendricks, 49 Ohio St., 297.
    c. If the finding of facts can be considered, then all the facts there found must be considered, and they show that the bill of exceptions was signed in time.
    1. The bill of exceptions was allowed and signed during vacation by the judge at chambers. Such action is the action of the judge and not of the court, and is not reviewable by the circuit court. Dwelle v. Wilson, 14 O. C. C., 551; 7 Circ. Dec., 611; Atwood v. Whipple, 48 Ohio St., 808. To obtain review of such action a motion should be immediately filed in the common pleas court asking to have such bill of exceptions stricken from the files. The action of the court upon that motion would be properly reviewable by the circuit court.
    2. There is no statutory provision for making any such finding of facts as is contained in the journal entry allowing the bill of exceptions. Section 5302, Revised Statutes, authorizes only an entry upon the journal of the allowing and signing of a bill of exceptions. There is no authority to make any finding of facts except by virtue of section 5205, which section applies only to the action of a court. There is no provision whatever authorizing a judge at chambers to make a finding of facts upon the presentation of a bill of exceptions for allowance. The finding of facts contained in the journal entry of allowance of the bill of exceptions is therefore imprdperly in the record and affords no subject of action by the reviewing court. Railway v. Thurstin, 44 Ohio St., 525; Lockhart v. Brown, 31 Ohio St., 431.
    3. The circuit court of Lucas county, have said in Dwelle v. Wilson, supra, that there is no authority for endorsing upon the bill of exceptions the time when it is submitted to opposite counsel and to the court, and that any such endorsement furnishes no evidence at which a reviewing court may look. The circuit court, however, on p. 555, do say, “That they do not say that evidence of it may not be preserved in a proper method.” The only proper method we think is by the introduction of such evidence upon the hearing of a motion in the common pleas court to strike the bill of exceptions from the files,
    4. Only such original papers as are necessary to exhibit the errors complained of are required to be filed with the petition in error. The errors shown by the contents of the bill of exceptions are not now in review. Can the bill of exceptions then exhibit any error complained of? There being no authority to endorse upon the bill of exceptions the time when it was submitted to opposite counsel and to the court, such endorsement furnishes no evidence at which a reviewing court may look.
    5. The remaining question, as presented by the record, is: Has the trial judge jurisdiction to allow and sign a bill of exceptions when the same has been presented to opposite counsel within the time required by the statute, but is not presented to him ■until after the expiration of forty-five days from the ■overruling of a motion for a new trial?
    No case presenting precisely this question has been before this court, so far as we have been able to learn, and, therefore, this precise question has never been presented for decision, nor decided by this court. But we maintain that the judge has such jurisdiction, and that the conclusion is fairly deducible from the decided cases. Neuman v. Becker, 54 Ohio St., 323; Long v. Newhouse, 57 Ohio St., 348; Pugh v. State, 51 Ohio St., 118. Tn all the cases in which this court has construed the provisions of section 5302, in regard to the time within which bills of exceptions should be presented for examination, allowance and signing the facts showed that the bill of exceptions was not presented to opposite counsel until after the expiration of the time fixed by la,w. In that regard, which this court has held to be the main purpose of the enactment of this statute, the case at bar differs from these cases, Tor the bill of exceptions was presented to opposing counsel, as required by the statute. Thus the rights of those whom the statute sought to protect, were fully conserved in the case, and they could not have been prejudiced by the action of the court thereafter. The statute was enacted to preserve rights and not to do injustice or to deny rights by a technical violation of its words and not its spirit, where no prejudice can or does result. As said by Bradbury, J., in Weaver v. R. R., 55 Ohio St., 491, at page 496, “the right to a new trial ought not to be defeated by placing too strict a construction on the section of the statute relating primarily to the time and manner of taking bills of exception.” In Pugh v. State, supra, the opinion very clearly sets forth, the reasons for the adoption of the amendment of 1892, and we desire to call special attention to that part of the opinion. In substance it is that the amendment of section 5302, was intended to remove the enforcement of the rights of the successful party to examine the bill, and be heard before its approval, from the region of courtesy and discretion, and place it on the solid ground of positive mandatory rule, and at the same time relieve the judge of the embarrassments attending the former practice. This purpose is deducible from the plain import of the words used, construed in the light of the evils referred to. The rule thus established is a plain one. It treats all alike, is easily understood by all, and, under ordinary conditions, will enforce itself. It tends to secure substantial justice in the correction of abuses of the former practice.”
    In short its purpose was to secure by mandatory legislation ample time for opposite counsel and the court to examine the bill of exceptions; to opposing counsel at least five days. So far as the trial judge is concerned, the second proposition of the syllabus is to the effect that the authority given by the second proviso of section 5302 to the trial judge to extend the time for signing not exceeding ten days beyond the expiration of the fifty, is for the convenience of the judge, to enable him to examine, sign and allow7 the bill, but it wms not necessary to a decision of the case for the court to determine wdiether the trial judge may waive the requirement that the bill be presented to him not less than five days before the expiration of the fifty days where the bill has been submitted to him within the fifty days, and had beep theretofore submitted to opposite counsel within the proper time.
    It is a principle of law well settled in Ohio, that in the construction and interpretation of a statute, the object of the statute, and the mischief which it was designed to guard will be looked to. School District v. Dilman, 22 Ohio St., 194. Another equally well settled principle of law in Ohio is that, “It is the duty of courts in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd consequences, injustice, or great inconvenience, as none of these can be presumed to have been within the legislative intent.” Moore v. Given, 39 Ohio St., 661, 663. The mischief sought to be guarded against by this provision of the statute, was, in the language of the court in Pugh v. State, supra, “to remove the enforcement of the right of the successful party, to examine the bill, and be heard before its approval, from the region of courtesy and discretion, and place it on the solid ground of positive mandatory rule, and at the same time relieve the judge of the embarrassment attending the former practice.”
    This was accomplished by the requirement that the bill should be submitted to opposite counsel at least ten days before the expiration of the fifty days; under the provisions of the statute, they could not demand more than five days for this examination. All of this has.been done in this case; opposite counsel have had their .full time for the examination of the bill, and made no objection to it; their rights have been fully protected, and therefore they cannot be prejudiced, provided the bill of exceptions is signed within the fifty days allowed by the statute or the extension allowed by the court. The other provisions cannot concern opposite counsel, for it is for the protection and convenience of the trial judge. The requirement of the statute is made so that he may have ample time to examine the bill before signing it. If he has ample time, what prejudice can follow to anyone? If the bill is not presented to the trial judge at least five days before the expiration of the fifty days, we do not doubt his right to refuse to sign it on that ground. But if he decides to waive that right, and either examines the bill during the remaining time, or extends the time by proper endorsement, no rights of defendant in error or his counsel have been prejudiced. As this court said in Pugh v. State, supra, this extension of time is “for the convenience of the judge to enable him to examine, sign and allow the bill.” Being for the convenience of the judge, if he chooses to waive the statutory time for handing to him, reserving ample time for examination, who can be prejudiced thereby? Is this not a case where the broad and liberal spirit of the code which says: (Revised Statutes, section 5115) “The court in every stage of an action, must disregard any error or defect in the pleadings- or proceeding which does not affect the substantial rights of the adverse party,” should be made a living reality?
    
      Sehoyn W. Otoen; C. P. & L. W. Wickham; Garver & Garver, and Love & GuTbert, for defendant in error.
    We deny the statement of counsel that the record shows that the motion in the circuit court to strike the bill of except!ons from the files was not heard upon evidence. In fact it was heard upon evidence, including the journal entry, the original bill of exceptions, and the affidavit of Judge Wildman. And we contend that the action of the circuit court is not reviewable here for the want of a bill of exceptions. None was taken to the court’s action on the motion.
    Counsel for plaintiff in error insist that the journal entry cannot be consulted to ascertain what order was made with respect to the bill because the action of the trial judge in vacation was not subject to review by the circuit court. A sufficient answer is that the circuit court did not attempt to review that action on error, nor was it invited to do so. What that court did do, and what it had the most unquestioned right to do, was to determine whether or not there was in that court any bill of exceptions, and it found there was not.
    Counsel further insist that a judge in vacation cannot authorize the embodiment in an entry of a finding of facts. We are not called upon to debate this proposition, as it is stated, but certain it is that the journal entry, by whomever authorized, becomes in legal effect the act of the court, and there must under section 5302, be an entry of the allowance and signing of the bill within the time fixed for such allowance and signing. Surely the journal entry is conclusive as to this statutory duty enjoined on the court. Hill v. Bassett, 27 Ohio St., 597; Railroad Co. v. Kirchner, 6 O. C. C., 211; 3 Circ. Dec., 420; Baldwin v. The State, 6 Ohio, 15; Acheson v. Bank, 8 Ohio, 117. It must appear from the record outside of the bill that the bill was in due time tendered to and allowed, signed and sealed, and ordered made part of the record; if the entry fails to show this it is not sufficient. Now this journal entry of which complaint is made, does fail to show that the bill of exceptions was tendered to the trial judge in time, and fails to show that it was allowed and signed in time. In fact-it shows affirmatively that it was not tendered to the trial judge in time nor allowed and signed by him in time. What does it matter whether the failure to tender the bill of exceptions to the trial judge in time, or his failure to allow or sign it in time, appears affirmatively or negatively? It is the office of a journal entry of the kind in question to show affirmatively that the bill- of exceptions was tendered to the trial judge in time and was also allowed and signed by him in time. If it fails to perform this office it is fatal to the bill of exceptions; that is, the bill does not become a part of the record. Such failure is a direct violation of tbe provisions of the section of the statute already referred to, because the statute implies that the allowance and signing must be of a bill of exceptions tendered in time.
    None of the cases cited by counsel for plaintiff in • error sustain their contention, and alb the recent d** cisions of this court compel an affirmance of the judgment below. Pugh v. State, 51 Ohio St., 116; Neuman v. Becker, 54 Ohio St., 323; Long v. Newhouse, 57 Ohio St., 348.
    The record shows beyond question that the motion for a new trial was overruled June 28, 1897; it also shows that the bill of exceptions was submitted to the trial judge August 17,1897 (fifty days after the overruling of the motion) and not before. The effort to perfect the bill, therefore, failed.
    Beyond this the entry fails to show that the bill was •ordered to be made a part of the record. And this fact conclusively establishes that the plaintiff in error had no bill of exceptions before the circuit court.
   By the Court :

We are of opinion that the order of the circuit court sustaining the motion to strike the bill of exceptions from the files Avas not erroneous.

Passing the question whether, in the absence of a shoAnng of the evidence on which the circuit court acted, its order is here reviewable, sufficient, we think,, appears by the record to support that holding.

It sufficiently appears by the statements of the bill itself, supplemented by the journal entry, that the bill was not presented to the trial judge Avithin the time required by statute. Not having been so presented in proper time, the judge had no jurisdiction in the matter, and was without authority to either sign and alloAv the bill or to extend the time for its allowance and signing. Neuman v. Becker, 54 Ohio St., 323; Long v. Newhouse, 57 Ohio St., 348.

But there is another fatal objection to the bill. There is no journal entry showing that it was ordered made a part of the record. Baldwin v. The State, 6 Ohio Rep., 15; Acheson v. Bank, 8 Ohio Rep., 117; Bill v. Bassett, 27 Ohio St., 597; Felch, Assignee, v. Hodgman, 62 Ohio St., 312.

Judgment affirmed.  