
    No. 952
    BLOCK v. CINCINNATI TRAC. CO.
    Cincinnati Superior Court
    Decided April 25, 1925
    849. NOTARY—The duty of a notary to file with the clerk of the court in which the action is pending, a deposition, is mandatory; and a motion to compel its filing will be granted.
    Attorneys—Simeon M. Johnson and Edgar Powers for Block; Roettinger & Street, and Leo J. Brumleve Jr., for Traction Co., all of Cincinnati.
    Note—This judgment was affirmed in Thayer, Ex Parte, OA. 3 Abs. 688.
   This case was filed by Ben Block against the Traction Company on Jan. 22, 1924; Block’s deposition was taken for the Company by a notary public but such deposition was not transmitted to the clerk of the Superior Court of Cincinnati as required by 11538 GC.

On May 20, 1924, the present action was dismissed without prejudice and on the following day a new one instituted, which is now pending. Block was absent from the county and will be absent upon the trial of the case. His attorney desiring to use the evidence embodied in the deposition and finding that same was not filed in the previous case, moved for an order to compel the notary who took said deposition to file it as provided by statute. The right to compel this filing was contested on the ground that the action for which this deposition was taken is no longer pending. The Court held:

1. Section 11538 GC. is mandatory and provides that the officer before whom it was taken “shall address and transmit it to the clerk of the court where the action or proceeding is pending.”

2. Upon being reduced to writing, said deposition became as much a court record as any other proceeding in the case. It was imperative, and the statutory duty of the notary to transmit it to the clerk of this Court.

3. His failure to do so does not deprive such deposition of its character as a court record, nor prevent this court from exercising jurisdiction to compel a completion of the record of said case.

4. The motion of attorney for Block is in effect one to compel an officer of the court to restore to the records of the court a document which he should have filed with the clerk as part of the official record of the proceedings in the case.

5. By their omission to perform the duty imposed upon them by law, the defendants can obtain no advantage which prevents the Court from ordering done what should have been done. They cannot profit by their own dereliction of duty.

Motion granted.  