
    Lewis et al. v. Bancroft.
    
      Jicstice of peace — Jurisdiction as to bill of exceptions.
    
    Unless the party requiring time to prepare a bill of exceptions in a trial before a justice of the peace, informs the justice during the trial that he requires such time, and the justice thereupon ax^points a time when the same shall be settled and signed, not more than five days from the day of trial, the justice loses jurisdiction, and cannot thereafter within the five days, on application of the party, sign and allow such bill of exceptions.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Portage county.
    Henry Bancroft brought an action against Addison Lewis and Mary Lewis for the recovery of fifty dollars before a justice of the peace. Trial was had and„ the justice instructed the jury to bring in a verdict for the defendants, which was done. After the entry of judgment on the docket on the second day of October, 1891, the docket entries are as follows: “Plaintiff gives notice to file bill of exceptions ; no time agreed upon. October 6, 1891, plaintiff appeared by his attorney and gives notice that he would file a bill of exceptions, October 7, 1891, at 5 o’clock p. m.
    “October 7, 1891, 5 o’clock p. M., plaintiff appeared by his attorneys and filed the following bill of exceptions. Attorney for defendant not present. ” Then follows a bill of exceptions signed by the justice of the peace.
    On petition in error the court of common pleas reversed this judgment and retained the case for trial, as.upon appeal, to which defendants excepted. Plaintiff filed his petition in the common pleas, and defendants failing to plead, a jury was waived, trial had to the court and judgment rendered in favor of plaintiff for the sum of forty dollars and costs.
    Thereupon defendants below filed their petition in error, claiming that the court of common pleas erred in reversing the judgment of the justice of the peace, and as ground of error alleged that the pretended bill of exceptions was not allowed by the justice so as to make it a- part of the record. The circuit court affirmed the judgment, and thereupon a petition in error was filed in this court to reverse the judgment of the circuit court, as well as the judgment of the common pleas, and to affirm the judgment of the justice of the peace.
    
      George P. Hunter, for plaintiffs in error.
    
      B. A. Herthiek, for defendant in error.
   By the Court.

Section 6565, Revised Statutes, provides as follows : “In all cases before a justice of the peace, whether tried by a jury or by the justice, either party shall have the right to except to the opinion of the justice upon any question of law arising during the trial of the cause; and when either party shall allege such exception, it shall be the duty of the justice to sign a bill containing such exceptions, if truly alleged, with the point decided, so that the same may be made a part of the record in the cause; and whenever either party during the trial shall require time to prepare his bill of exceptions, the justice shall appoint a time when the same shall be settled and signed, not more than five days from the day of trial.”

The docket entry does not show that plaintiff below during the trial, or even at the close thereof, required time to prepare his bill of exceptions, and no time was appointed by the justice when the bill of exceptions should be settled and signed. In such case the justice has no further jurisdiction after the close of the trial and the departure of the parties, to afterward settle and sign a bill of exceptions, and a bill of exceptions so signed and filed does not become a part of the record,and should be disregarded by the reviewing court. Without the bill of exceptions there was no error in the judgment of the justice of the peace, and that judgment should have been affirmed. The judgments of the circuit court and of the court of common pleas, are therefore both reversed, and the judgment of the justice of the peace affirmed.

Section 6565 was again amended, 90 Ohio Laws, 358, but this opinion is based upon the statute as it stood before said amendment.

Judgment reversed.  