
    ARMENTROUT et, Plaintiffs-Appellees, v. STERLING, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4460, 4461.
    Decided July 6, 1950.
    Ashbaugh, Elliott & Smith, Ralph G. Smith, Wright, Harlor, Purpus, Morris & Arnold, H. B. Arnold, Jr., of Counsel, Columbus, for plaintiffs-appellees.
    Jos. E. Bowman, Charles Saunders, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted upon motion by the plaintiffs-appellees seeking an order striking from the files the bill of exceptions filed herein for the reason that the same was not filed in the trial court within forty days after the overruling of the motion for a new trial as required by §11564 GC.

The record discloses that forty-three days elapsed between the time of the overruling of the motion for new trial and the filing of the bill of exceptions. The provisions of this section of the Code are mandatory. Department of Liquor Control v. Alessandro, 56 Abs 554; Teegarden v. Teegarden, 80 Oh Ap 79.

We note the comment of counsel for the appellant concerning Rule VII of this court. We think in all probability this rule should be clarified and the same will be referred to the judges of the Courts of Appeals for reconsideration at their next annual session.

The motion to strike will be sustained.

MILLER, PJ, and WISEMAN, J, concur.

HORNBECK, J, not participating.

ON MOTION SEEKING AN ORDER AFFIRMING JUDGMENT

Nos. 4460, 4461. Decided November 3, 1950.

By THE COURT.

Submitted on motion by the plaintiffs-appellees, seeking an order affirming the judgment for the reason that there is no record to support the assignment of errors, the biil of exceptions having been ordered stricken from the files by the Court on July 6, 1950.

The motion will be sustained.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.  