
    Pace v. Volk.
    
      Bill of exceptions — Must be reduced to writing and tiled, when— Duty of clerk and judges directory, merely — Sections 11564 and 11572, General Code — Court procedtire.
    
    1. Proceedings in error being statutory, the requirement of Section 11564, General Code, that “the party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion for a new trial” is mandatory; but the provisions of the following sections defining duties of the clerk and of trial judges with respect to a bill of exceptions which a party has so filed within the time required are, as to the time of the performance of such duties, directory merely.
    2. A bill of exceptions, taken upon the trial of a cause in the court of common pleas, and by the exceptor reduced to writing and filed in the office of the clerk within the forty days so limited, will become a part of the record to be considered by a reviewing court if the bill is signed by the trial judge and filed in the office of the clerk in accordance with the requirement of Section 11572, General Code.
    (No. 12874 —
    Decided February 6, 1912.)
    .Error to the Circuit Court of Erie county.
    
      Pace filed his petition in error in the circuit court on September 17, 1910, praying for the reversal of a judgment which Mrs. Volk had recovered against him in the court of common pleas on May 24, 1910, after a trial to a jury upon issues of fact and after his motion for a new trial had been overruled. In his petition in error he assigned as errors numerous rulings of the court of common pleas upon the trial, in the admission and rejection of evidence, in refusal to instruct the jury as requested, and in overruling the motion for a new trial on the ground that the verdict was contrary to law and the weight of the evidence, the errors appearing only on the bill of exceptions filed in the circuit court with the transcript and original papers on the 23d day of September, 1910. Upon the hearing of the petition in error the circuit court made the following order: “It appearing to the court that the transcript of the proceedings of the court of common pleas filed as a bill of exceptions is not signed, sealed and allowed as provided and within the time required by law, the court find that said transcript is not a proper bill of exceptions and that it is without jurisdiction to consider the same, and it is ordered that said transcript be, and the same hereby is, stricken from the files.” There being then no error upon the record the judgment of the court of common pleas was affirmed. The facts of record upon which the circuit court made that order are as follows: The judgment of the court of common pleas was entered on May 24th, the motion for a new trial having been overruled on the same day. The bill of exceptions which was subsequently found to be correct and signed by the trial judge was prepared by counsel for the plaintiff in error and filed in the office of the clerk on June 30th. The trial judge being sick, the bill of exceptions was sent by the clerk on July "20th to another common pleas judge of the district, by whom no action was taken upon it. On the 23d of September, the trial judge received it from the clerk and upon the same day allowed and signed it and transmitted it to the office of the clerk where it was received on the same day. No objection was ever made to the bill, and it has been, ever since it was filed with the clerk, admitted to be correct.
    
      Messrs. King & Ramsey, for plaintiff in error.
    
      Mr. John Ray, for defendant in error.
   Shaucic, J.

We seem to find difficulty in escaping from apparently needless difficulties surrounding the conduct of proceedings in error which culminated in Long v. Newhouse, 57 Ohio St., 348. That case is said to have been regarded by the circuit court as authority for the order of which complaint is made here. It is quite true that proceedings in error are statutory, which means that they must be conducted with substantial regard to the requirements of the statute by which they are authorized. More recent amendments of the statute made since the decision in Long v. Newhouse, have shown a manifest disposition on the part of the legislature to relieve the subject of unnecessary difficulties, and the concurrent decisions have recognized the remedial character of the legislation. The recent case of Davies v. New Castle & Lowell Railway Co., 71 Ohio St., 325, proceeds upon the view that when a party desiring to bring his exceptions upon the record for the purpose of prosecuting them in a reviewing court has filed his bill of exceptions in the office of the clerk within the time fixed by statute, a subsequent delay by the clerk .in the performance of the duties which the statute lays upon him will not defeat the bill. The present question arises out of the failure of the judge to sign the bill within the time designated by the statute upon its being filed in the office of the clerk. The trial judge in the present instance being sick at the time at which the bill would naturally have been signed, at the request of the party taking the exceptions the bill was sent to another judge of the district according to the provisions of Section 11568, General Code. For some reason not disclosed by the record the judge to whom it was sent did not sign it, but it was thereafter signed by the trial judge on the 23d day of September, and on that day it was filed in the office of the clerk of the court. This was within four months after the overruling of the motion for a new trial and the rendition of the judgment in the court of common pleas.

There appears no reason why the duties of the clerk with respect to a bill of exceptions should be regarded as directory and those of the trial judge mandatory, for with respect to them, both officers act in a ministerial capacity. In neither case is there any reason why a party who has himself complied with the duties imposed upon him by law should lose a remedy because of the failure of a public officer, and it is quite consistent with the rule that he should not. The correct view seems to be that the party having performed the duty which the statute imperatively imposes upon him with reference to a bill of exceptions, duties which the statute prescribes to be performed by the clerk and judge with respect to the bill, are directory merely, and the bill is effective if signed by the judge and filed in the circuit court in accordance with the requirement of Section 11572, of the General Code. Not only is this view consistent with all the substantial considerations involved in the subject, but it is much encouraged by the provisions of the section lastly cited.

Judgment of the circuit court will be vacated and the cause remanded to the court with direction to consider the bill of exceptions.

Judgment vacated and cause remanded.

Davis, C. J., Spear, Price, Johnson and Donahue, JJ., concur.  