
    MANDAMUS TO COMPEL SIGNING OF BILL OF EXCEPTIONS.
    [Circuit Court of Hamilton County.]
    State, ex rel Wolf, v. Frederick S. Spiegel, Judge.
    Decided, December 16, 1903.
    
      Bill of Exceptions — Mandamus to Compel Signing of — Affidavits in Support of Motion for a new Trial Not Part of, When; Judicial Discretion — Amendment to Bill.
    
    1. Where the relator prays that the respondent be compelled by mandamus to sign a certain bill of exceptions, and the respondent answers that the said bill is not a true bill and that a certain amended bill was filed which he has determined to be the true bill and has signed and allowed, and this answer is not denied by any reply, the respondent is entitled upon the pleadings to have the bill dismissed.
    
      2. Affidavits filed with the clerk upon motion for a new trial and not presented to the court upon hearing should not be embodied in the bill of exceptions.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The relator in her petition avers that she filed a true bill of exceptions with the clerk of the court in the case of Carrie Wolf against Sarah Marmet and others, and that the clerk transmitted the bill to the respondent, the trial judge in the case, who reurned the same to the clerk unsigned, unindorsed and unallowed, and the relator prays that the respondent be compelled by mandamus to allow and sign the relator’s said full, complete and true bill of exceptions in said case against Sarali Marmet and others.

Galvin & Bauer and Dempsey & Fridman, for relator.

Charles W. Baker, contra.

The respondent, by answer, says that the bill of .exceptions so filed with the clerk was not a true bill, and that an amended bill of exceptions was filed with the clerk by the defendants in the cause, and the respondent judicially determining that the latter was a true bill, signed and allowed the same. This is not denied by any reply, and upon the pleadings therefor the respondent would be entitled to have the petition of the relator dismissed. But assuming that the allegation in the answer was denied, the question arises whether affidavits filed with the clerk of the court upon a motion for a new trial and not presented to the court upon the hearing should be embodied in the bill of exceptions. The object of filing the affidavits with the clerk before the hearing is to give the adverse party an opportunity to prepare and file before the hearing counter-affidavits, neither of which are a part of the record of the cause. The party so filing the affidavits may elect before the hearing not to present the affidavits to the court, and if offered as evidence the adverse party may object on the ground that they are not properly executed, or that the statements therein are mere conclusions of law, or that the facts stated are irrelevant to the issue. If the objection is sustained by the court and the affidavits ruled out, the party is not entitled to have them attached even then, to a bill of exceptions, unless he excepts to the ruling of the court in excluding them. The affidavits not being presented to the court, the court having no knowledge that the same were filed with the clerk, and rightly declaring the bill of exceptions containing such affidavits not to be a true bill and the respondent having answered that he signed a true bill of exceptions in the cause, this court can not interfere with his discretion in the premises. State v. Hawes, 43 Ohio St., 16.

The petition of the relator will be dismissed.  