
    The Cincinnati Traction Co. v. Ruthman.
    
      Filing bill of exceptions — Duty of trial judge — Sections 5301 and 5301a, Revised Statutes — Law will not permit a party to suffer by neglect of duty of public officer, when — Signing by judge of bill of exceptions — Ministerial and not judicial act — Bill of exceptions allowed by judge and transmitted to clerk — But through neglect, not signed by him — May be signed subsequently by judge as nunc pro tunc — Duty and rights of counsel as to such judicial neglect — Court procedure.
    
    1. The general rule that the law will not permit a party to suffer detriment by reason of the neglect or misconduct of an officer charged with a public duty where such party, in the prosecution of a right, has done everything that the law requires him to do, and fails to attain his right wholly by such neglect or misconduct, the duty of the officer being one pertaining to such right, has application to a case coming within the purview of sections 5301 and 5301n, Revised Statutes, providing for the filing, allowance and signing of bills of exceptions.
    2. The signing by the judge of a bill of exceptions taken in the court of common pleas, after the same has been settled and allowed, is a ministerial, and not a judicial act. Such act, when omitted to be done at the time prescribed by statute by oversight of the judge, may be done by him in a proper case nunc pro tunc.
    
    3. Where it is shown that in a cause tried in the court of common pleas the counsel for the excepting party has done all acts with respect to the preparation, filing and perfection of a bill of exceptions enjoined by statute, and the judge, within proper time, has considered, corrected, settled, and, having found the bill thus perfected to be correct, allowed the same, but, through oversight and inadvertence, has failed to sign the certificate attesting its correctness, and has in due time transmitted the bill to the clerk without such signature, a proper case is made for asking and obtaining from the reviewing court in which a proceeding in error is pending, authority to obtain the signature of such judge nunc pro tunc.
    
    
      4. When the bill is perfected by the addition of such signature, it is as effectual in law to all intents and purposes as though the same had been signed by the judge within the time allowed for such signing by the section of the statute cited, and it is error for the reviewing court to strike off and refuse to consider such bill when perfected by the signature of such judge.
    The failure of the counsel for the excepting party to notice the absence of such signature at or before filing the same in the reviewing court, or before the expiration of six months thereafter, is not negligence affecting the right of their client to insist on a correction of the bill by the addition of the signature of such judge.
    (No. 11919 —
    Decided October 31, 1911.)
    Error to the Circuit Court of Hamilton county.
    The question involved in the case relates to the refusal of the circuit court to consider a bill of exceptions, and the sustaining of a motion to strike the same from the files.
    It appears by the record that in a suit pending in the court of common pleas of Hamilton county, wherein John Ruthman (here defendant in error) was plaintiff, and The Cincinnati Traction Company (here plaintiff in error) was defendant, a verdict was rendered in favor of the plaintiff and against the defendant at the January Term, 1908, to-wit, January IS, 1908. Motion for new trial was thereupon filed by the Company, which on March 11, 1908, was overruled and judgment rendered for plaintiff and against the Company. On March 28 a bill of exceptions on the part of the Company was filed with the clerk, notice of which was on March 31, 1908, served on the attorneys of record for plaintiff. April 2, following, objections to the bill were filed by the plaintiff. April 8, affidavits were filed on the part of the plaintiff. On the same day the bill, with the exceptions and objections thereto, were transmitted to Honorable John G. O’Connell, the trial judge. April 11, affidavits on the part of defendant were filed. April 13, the bill of exceptions and the objections and affidavits were received by the clerk from the judge, the bill endorsed “Allowed,” but the bill did not then have attached, certifying to its allowance, the signature of the judge.
    On June 25, following, a petition in error, with transcript of original papers including bill of exceptions were filed in the circuit court; also entry of appearance of defendant in error. On December 5, following, a motion by the Company for leave to present bill of exceptions to the trial judge, and affidavit in support of motion filed. December 10, motion by Ruthman to strike bill of exceptions from the files and to dismiss the cause on the ground that the bill had not been allowed and signed according to law, filed. December 23, a motion was made by the Company suggesting diminution of record, and an order on the clerk of the court of common pleas entered, directing him to certify up a complete and perfect transcript of the record and proceedings below. April 3, 1909, an entry was made in the circuit court ordering the bill of exceptions stricken from the files on the ground that the signature of the trial judge was not affixed to the bill within the time required by law, and entering judgment affirming the judgment of the court of common pleas, the circuit court finding that there is no error apparent on the record further than what might be shown by the bill of exceptions, which is not considered. A full bill of exceptions to this action of the circuit court was taken by the Company, and is part of the record herein. It is shown by this bill that on the - day of -, 1909, the bill taken in thé common pleas was duly presented by the clerk to the trial judge, and said judge affixed his signature to the bill as of April 13, 1908, as appears thereon, and the clerk certified up to the circuit court the record as thus completed and perfected and the bill thus corrected and completed is the said bill and filed in the circuit court after the signature of the trial judge, certifying to its correctness, had been affixed. The bill of exceptions is certified by the trial judge as follows: “Witness the hand and seal of this court this 13th day of April, 1908, which signature is affixed this 26th day of December, 1908, as of April 13, 1908.
    “John G. O’Connell,
    
      “Judge of the Court of Common Pleas “of PIamilton County, Ohio.”
    
    It is to this order and judgment, and especially the striking off of the bill, that the plaintiff in error excepts and asks to have reversed. Further facts appear in the opinion.
    
      Messrs. Kinkead, Rogers & Ellis, for plaintiff in error.
    We believe the rule applies that where an individual in the prosecution of a right does everything which the law required him to do, he will not be prejudiced by the neglect or delay of the clerk of the court or of the judge. Lytle v. Arkansas, 22 How., 193; 3 Ency. Pl. & Pr., 474; 
      Denver v. Capelli, 3 Col., 236; Williams v. People, 25 Col., 251; Olds v. Railway Co., 165 Ill., 472; Ferris v. Bank, 158 Ill., 237; Parker v. Kuhn, 19 Neb., 394; McGee v. Beall, 63 Miss., 455; Hake v. Strubel, 121 Ill., 321; Weber v. Ins. Co., 80 Ill. App., 390; Chaplin v. Railroad Co., 227 Ill., 166; Mayo v. Hynote, 16 Fla., 673; Railroad Co. v. Morrison, etc., Co., 160 Ill., 288; Coal Co. v. Strunk, 89 S. W. Rep., 145; Pollock v. Aikins, 4 S. Dak., 374.
    In each of the following cases the principle is followed that the signature of the judge may as a ministerial act be performed after the time limited therefor, provided that the appellant has performed all the steps incumbent upon him by law. Swem v. Green, 9 Col., 358; Cochrane v. Little, 71 Md., 323; People v. Judge, 41 Mich., 725; Fechheimer v. Trounstiene, 12 Col., 282; Dyson v. Railway Co., 113 Ga., 327; Davies v. Railway Co., 71 Ohio St., 325; Pullman Co. v. Washington, 10 C. C., N. S., 105.
    
      Mr. Frank Seinsheimer and Mr. Thomas L. Michie, for defendant in error.
    First. Can a bill of exceptions which is unsigned be noticed? Second. Has the trial court a continuing jurisdiction to sign a bill of exceptions after the statutory time?
    The method of perfecting a bill of exceptions is purely statutory, and the bill of exceptions must be perfected in substantial compliance with the statute.
    
      No matter what may be the form of the bill of exceptions, the essential requisite of the bill must always be the signature of the trial judge.
    The present statute (section 5301) as construed in Davies v. Railway Co., 71 Ohio St., 325, was framed for the purpose of avoiding some of the more stringent provisions of former statutes in this state, but this case affords no warrant for-the contention that all of the conditions and limitations governing the perfecting of the bill of exceptions have been destroyed.
    This .court has further construed sections 5301a and 5302 in the case of Buck v. State, 80 Ohio St., 395. Shilito v. Thacker, 43 Ohio St., 63; Origet v. United States, 125 U. S., 240; Kerley v. Vann, 52 Ala., 7; Gifford v. Hess, 15 Ind. App., 450; Busby v. Finn, 1 Ohio St., 409; Regan, Admx., v. McHugh, 78 Ohio St., 326; Britton v. Leslie, 14 C. C., 532; Hollister v. Judges, 8 Ohio St., 202; Wagner v. Ziegler, 44 Ohio St., 59; Jones v. Burch, 71 Tenn. (3 Lea), 747; Sewell v. Edmonston, 66 Ga., 353; Samuel v. Railway Co., 135 Ala., 501; State v. Hamilton, 214 Mo., 315; Lindquist v. Bank, 138 Ill. App., 446.
   Spear, C. J.

It was shown to the circuit court by the affidavit of the trial judge, no evidence being offered to contradict it, that he received from the clerk of the common pleas, a bill of exceptions in said case, April 8, 1908, and endorsed that he had so received it. Also with it certain objections and certain affidavits; that on April 11 there were filed and received certain other affidavits; that on April 13, there appeared before him in his consultation room counsel of record for both parties, and that he then and there considered the affidavits and heard the objections to the bill, and after such hearing and in the presence of counsel made certain corrections in the bill found necessary by reason of the said objections. He thereupon settled the bill and announced to counsel present that he allowed the bill as settled; and he did settle and allow the bill, and, thereafter, believing -that he had signed a certificate of allowance of the bill, transmitted it to the clerk on April 13, 1908. Finding his signature not attached to the certificate and bill he now states that his omission to sign the same was an inadvertence on his part. Said bill of exceptions is a correct bill and contains all the evidence and exceptions in the cause, and affiant is willing to sign the same as of April 13, 1908, if permitted by the court to do so.'

The manner of taking and perfecting bills of exceptions was, at the dates above given, regulated by sections 5301 and 5301a, of the Revised Statutes. These sections, as has been held by this court in numerous cases, are remedial, and therefore should receive a liberal construction. They were enacted for the purpose of obviating many vexatious difficulties which had grown up in practice under older statutes and decisions of this and other courts giving construction to them. No mere technicality, therefore, it would seem, ought to stand in the way of the careful practitioner who seeks, by the aid of a bill of exceptions, to obtain for his client a review of an adverse judgment standing against him, but he should be accorded a hearing on his alleged errors in the reviewing court provided he has been diligent in his compliance with the requirements imposed on the complaining party by the sections of the statute above referred to. It is not necessary to here repeat the successive steps taken by counsel for the Company to comply with the provisions of the statute, but it is enough to say that an examination of the record fails to disclose any duty which the sections cited impose upon counsel which were not complied with by counsel for the excepting party in this case.

No question of jurisdiction of the court is involved in our inquiry. It is simply a question as to the right of the trial judge to attach his signature to the bill nunc pro tunc, and the effect of such act of signing upon the rights of the parties. If that act were a judicial act there might possibly be some ground for denying that power. But it is not. The settling and allowance, that is determining the correctness of the bill, is judicial, but the mere act of signing is purely ministerial and follows as matter of duty upon the ascertainment by the judge that the bill presented is a true bill. It was held by this court in The State v. Chapman, 67 Ohio St., 1, that the duty enjoined upon a clerk of the common pleas to certify a case ordered to be transferred to another county is purely ministerial, it calling for no exercise of discretion, and, in a later case involving the right of a party plaintiff in error in this court to have supplied by a clerk of the court below a certificate showing that the transcript of the record filed here was a true copy thereof, the order was made by this court allowing the plaintiff in error, on a suggestion of diminution of record, leave to procure and file a perfect transcript, and the record thus perfected was recognized and acted upon in the further consideration of the case in this court. It is difficult to see any difference in principle in the two situations. That the act of signing is a mere ministerial act is held in Hake v. Strubel, 121 Ill., 321; Chaplin v. R. R. Co., 227 Ill., 166; Weber v. German Ins. Co., 80 Ill., 390, and in many other cases.

Now it is a rule of general application, if not of universal application, that where a party in the prosecution of a right does everything which the law requires him to do, and fails to attain his right wholly by the neglect or misconduct of an officer charged with a public duty with respect thereto, the law will not permit the diligent party to suffer detriment by reason of such neglect; a condensed expression of the rule being that the wrongful act of the judge shall not, in law, prejudice the well-intended acts of the party. This rule is promulgated and held to apply to the signing of bills of exceptions in 3 Cyc, 44, in 3 Ency. of Pl. & Pr, 474, and in the following as well as other cases: Ferris v. Com. Nat. Bank, 158 Ill., 237; Olds v. N. C. St. Rd. Co., 165 Ill., 472; Parker v. Kuhn, 19 Neb., 394; Denver v. Capelli, 3 Col., 236; Williams v. The People, 25 Col., 251. See, also, Noble v. Houk, 16 S. & R., 421.

But it is insisted by counsel for defendant in error that, whatever may be' the general rule applicable to cases of this character, under the circumstances shown by the record, such rule can have no application to the case at bar because of the laches and negligence of the complaining party, and attention is called to the fact that the counsel failed to discover that the bill lacked the judge’s signature at the time they filed it in the circuit court (June 25, 1908), and allowed over seven months to elapse after the reception by the clerk of the bill from the hands of the judge before calling attention to the defect and asking an order for its correction. Such neglect and delay, they claim, ought to and does in law, defeat any effort to correct the bill at such a late day. But why should it? As a significant fact, it is to be noted that no harm or prejudice of any kind has ensued to the other party by reason of the delay. And next, why had not the counsel the right to assume that the trial judge had done what the statute makes it his duty to do on the allowance of the bill, to-wit: attach his signature to the certificate attesting its correctness? Is the lawyer bound to keep watch, at the peril of his client’s rights, of the action of the judge in a ministerial matter in a situation where the counsel has done all that the statutes require of him? Nay, has he not the right in law to assume that the judge has done his statutory duty in the premises? We think it was not negligence on the part of counsel to fail to observe earlier the absence of the judge’s signature. True it is that judges may be quite as likely to fall into lapses of memory as other people, and we would not desire to discourage extra vigilance on the part of counsel out of abundant caution in order to avert injurious consequences arising from such lapses, but it doesn’t at all follow that a failure to observe such vigilance and caution should result in wrecking their client’s case. It appears that the attention of the circuit court was called to the defect as soon as it came to the notice of the counsel, and that we hold was sufficient.

As conclusion we are of opinion that, under the circumstances of this case, the rule hereinbefore fully stated to the effect that the negligent omission of the judge in a purely ministerial matter should not prejudice the well-intended acts of the party has application to this case, and that, the signing of the bill by the judge nunc pro tunc was a legitimate and proper performance of duty. We are further of opinion that the failure of counsel for the complaining party to earlier seek a correction of the defect in the bill was not negligence, and cannot be regarded as in any way prejudicing their client’s case.

It follows from these conclusions that the circuit court was in error in sustaining the motion to strike off the bill of exceptions and thereupon rendering judgment. The judgment will be vacated and the cause remanded to the circuit court of Hamilton county with direction to overrule the motion to strike off, to then consider the bill of exceptions, and for further proceedings..

Judgment vacated.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.  