
    The State, ex rel. The Prudential Ins. Co. of America, v. Price.
    
      (Decided March 18, 1933.)
    
      Messrs. Frazier & Holliday and Mr. J. W. Giffin, for relator.
    
      Mr. Jos. L. Meenan, for respondent.
    
      Mr. J. E. Powell, amicus curiae.
    
   Sherick, P. J.

The plaintiff by this action commenced in this court on February 25, 1933, desires the command of this court for the issuance of a writ of mandamus as against T. D. Price, the trial judge in a cause previously tried in the court of common pleas of Perry county, wherein Roy L. Hubble was plaintiff and the relator was defendant. The prayer of the petition is for an order commanding Judge Price to sign, or to correct and sign and allow, the relator’s bill of exceptions filed in that cause.

From the pleadings, the stipulated facts, and the evidence, the following situation is shown to have developed: On- December 5, 1932, a verdict was returned by a jury against the relator and in favor of Hubble. A motion for a new trial was thereafter filed, and was heard on December 19. On December 22, thereafter, an entry signed by the court was filed, which recites that the motion was overruled as of December 19 and judgment entered on the verdict.

Thereafter on January 30, 1933, a purported bill of exceptions was filed by the relator with the clerk of that court, and within an hour thereafter the bill was taken from the clerk by the relator’s counsel without the knowledge or consent or order of the court. The bill of exceptions was not returned to the clerk by-relator’s counsel until February 13th. During this interim counsel for Hubble made frequent requests of the clerk for the bill, which was then not available.

Further it appears that counsel for Hubble, having received the bill after February 13th, returned it to the clerk, and at the same time filed a motion to strike the bill from the files. The bill and the motion were transmitted by the clerk t,o the trial judge bn February 20th. On the same day the bill of exceptions was by the court returned to the clerk unsigned. The answer filed contains the following averment, which is not disputed: “Defendant says further that he has been available at all times since the motion for a new trial was entered in his court and if the same was not presented to him within the time required by law it was no fault of his, and no fault of the clerk, but was due wholly and solely to the fault and negligence of the attorneys for said Insurance Company; that the said motion to strike the bill from the files is still pending in the court of common pleas,” and is undisposed of.

This question is therefore presented: Is the relator, under this state of facts, entitled to the issuance of a writ, when it is responsible for the failure and inability of the clerk and court to perform their duties within the time prescribed in Sections 11565 and 12566, General Code?

Our attention has been directed to numerous early Ohio cases decided under the statutes then existing, prior to the enactment of the two sections referred to, which hold the respective duties of the clerk and trial court in respect to the perfecting of a bill of exceptions to be mandatory and jurisdictional requirements. These authorities, however, on the question presented, are now in the main historical. The Supreme Court, considering the present sections as re-enacted, now holds these duties to be merely directory and ministerial in character when the excepting party has performed the statutory duty required of him, that is his preparation and filing of the bill, as required by Section 11564, General Code. See Cincinnati Traction Co. v. Ruthman, 85 Ohio St., 62, 96 N. E., 1019, Ann. Cas., 1913A, 911, and Pace v. Volk, 85 Ohio St., 413, 98 N, E., 111.

These cases condemn the odious practice of past adjudication in terminating litigation on purely technical grounds, and assert the prevailing and just doctrine that a party should not suffer detriment by reason of a ministerial nonfeasance of a clerk; or judge. And in Beebe, Judge, v. State, ex rel. Starr Piano Co., 106 Ohio St., 75, 139 N. E., 156, it is held that such proceedings are remedial in character and should be liberally construed. An examination of these authorities, however, discloses that these cases are such as deal with situations in which the excepting party has not only performed the statutory duty required of him, but has exercised due diligence therein to the end that the official ministerial acts thereafter to follow might be done and performed within the statutory allotted periods.

We fully appreciate the logic and soundness of these authorities, but we hold the view that these decisions do not meet the situation here presented. In exercising liberality of statutory construction we conceive it to be likewise a judicial duty to have in mind certain rights of the successful litigant. Section 11565, General Code, provides that after notice he is entitled to ten days to prepare and file any objection or amendment to the bill. This is a substantial right which should not be lightly considered or denied. It is a mandatory duty imposed on him, and if he should fail within the time prescribed to object or suggest amendment to the bill he might be faced in the reviewing court with an untrue' bill. In the instant action a bill of exceptions was filed within the forty days allotted. Hubble’s counsel was notified of this, but the bill was not obtainable, for the relator’s counsel had! withdrawn it from the files within the hour and kept it in their possession for a period of two weeks. Now if the excepting counsel might keep it from the prevailing party for fourteen days he might withhold it for a much longer period. In fact, if Porter v. Rohrer, 95 Ohio St., 90, 115 N. E., 616, supports the relator’s contention, counsel might delay the bill’s return to within fifteen days before trial in this court. If such practice could be countenanced, errors disclosed by the bill and relied upon for reversal could not be briefed understandingly by a defendant in error, and this court’s salutary brief rules would be made to amount to naught, and unfair advantage would be taken of a defendant in error.

It seems to us that an excepting party has not only the mandatory duty to file his bill of exceptions within the forty-day period, but that he has a further duty to perform, that is, to refrain from doing any act that would make the bill unavailable to his opponent and render it impossible for a defendant in. error to perform his mandatory duty within time. The relator by his own act has made it impossible for the respondent to perform his duty within the statutory time. We do not believe that a relator should be permitted to accomplish by a writ of mandamus that which he has by his own act caused to be unperformed by the public official whom he seeks thereafter to coerce.

Diligence and fairness of unsuccessful counsel are indispensable attributes and prerequisites to obtaining reviews of adverse decisions. In the presented situation the respondent knew that the clerk, the opposing counsel, and the court each had a duty to perform with respect to his bill; and he knew that if he withdrew the bill these duties could not be performed. This having been done without that court’s permission was contrary to fair practice, which does not draw this court to the view that the relator has shown a clear right to the relief prayed for.

There is a second reason why the writ should not issue. It is not averred in the petition that the bill of exceptions filed was a true bill. It is stated that it is a “written bill.” The answer filed by the respondent alleges that it is but a purported bill of exceptions, and “denies it is a true bill.” The application for the writ is not accompanied by the bill in question. It' was not placed in evidence and is not now before this court. It is not stipulated or proved that the bill is a true bill. It may be wrong in its entirety and not susceptible of correction in its present form. The members of this court are not inclined to order the signing of a paper the contents of which are not known to us. It is within the respondent’s sole power to determine if the bill be true; and it not being charged or proved that the trial court has abused his discretion in so determining, this court must assume its conclusion to be true. Creager v. Meeker, 22 Ohio St;, 207, and State, ex rel., v. Baer, Judge, 8 Ohio App., 184, support the conclusion reached.

The issuance of the writ is denied and judgment rendered for the respondent.

Writ denied.

Lemert and Montgomery, JJ., concur.  