
    HOKE v STATE ex PAYNE
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2546.
    Decided Sept 18, 1935
    W. S. Lyman, Columbus, for plaintiff in error.
    Donald J. Hoskins, Prosecuting Attorney, Columbus, and Joseph E. Bowman, Asst. Pros. Atty., Columbus, for defendant in error.
   OPINION

By THE COURT

The above entitled cause is now being determined on motion of defendant in error to dismiss the petition in error for the reason that no bill of exceptions has been filed within the time prescribed by law.

It has been definitely determined by the Supreme Court of this state in the case of Townsend v Harrison, 53 Oh St, 398, that where the assignments of error-are founded solely upon a bill of exceptions taken in a lower court but not filed within the statutory peried, the proper procedure is to affirm the judgment rather than dismiss. In the instant case it very clearly appears that the error complained of is only manifest through the bill of exceptions and further that the time within which such bill could be filed under the statute has expired.

On our own motion under the state of the record, the judgment of the lower court will be affirmed and exceptions allowed to plaintiff in error. Judgment for costs will be entered against plaintiff in error.

Entry may be drawn in accordance with this decision.

BARNES, PJ, HORNBECK and BODEY, JJ, concur.  