JURISDICTION TO COMPEL TRIAL JUDGE TO SIGN BILL OF EXCEPTIONS.

Court of Appeals for Cuyahoga County.

#### State, ex rel John Gill & Sons Co., v. George P. Baer, Judge.

Decided, December 24, 1917.

*Mandamus*— Determination *as to Whether a Bill of Exceptions is True, Tested in the Trial Judge*— Can *Not he Compelled to Sign a Bill He Has Found to he Untrue.*

The judge who sat at the trial is under no obligation to prepare a bill of exceptions, his sole duty 'being to determine whether the bill submitted is a true bill and if he so finds to sign and seal it as provided by law; and this rule is not affected by the fact that there was no stenographic report taken of the evidence and there has been a change of counsel since the trial occurred and it is impossible to procure all of the testimony from the memory of counsel.

*Hoyt, Dustin, Kelley, McKeehan <& Andrews,*for plaintiff.

*George Spooner*and *Samuel Honvitz,*contra.

Carpenter, J.

The relator alleges that he had duly presented to the trial judge a “true” bill of exceptions of all the evidence produced at the trial in the case of the *John Gill & Sons Co.*v. *J. Ahlishy,*at which trial the said Hon. George P. Baer presided, and asked him to correct the same, if necessary, and to allow and sign such bill, as provided in Section 11566, G. C.; that said defend*14ant refused arbitrarily and unjustly and for the sole purpose of defeating relator’s right to proceed in error in said cause, to settle, .allow or correct and sign said “true” bill of exceptions, etc. An alternative writ was allowed to issue.

The defendant in his answer says in substance that the trial consumed two full days during which time much testimony was required and that he advised counsel then to secure a stenographer so that a record might be made, but that said counsel did not so do; that the relator, after the' rendition of the verdict, changed counsel; that the said bill of exceptions which said counsel had so prepared and presented to him for signature was not a “true” bill and did not and does not truthfully set forth the testimony nor evidence; that it does not properly or fully report, even in substance, the testimony of the witnesses at said trial; that it charges and accredits testimony to the defendant that was obtained from relator’s superintendent on cross-examination, does not give the charge of the court correctly or fairly, and untruthfully states that said bill contains “all the evidence offered and given at said trial.”

Defendant further alleges that all the matters regarding said bill of exceptions were fully presented to him at a hearing at which both plaintiff’s and defendant’s counsel were present and arguments made, at which hearing the court held that the bill presented to him was not a “true” bill of the testimony nor evidence in said ease; • that then and there he offered to help relator’s counsel to prepare a suitable 'bill to raise any questions of law involved in the trial and now offers to sign any “true” bill that is presented.

In the argument of counsel at the hearing it was substantially admitted that the bill did not contain “all the evidence” and that it was not a “true” bill. Excuse was made that by reason of change of counsél and the circumstances connected therewith that it was impossible to procure from the memory of counsel who was present and conducted the trial all of the evidence and charge of court, the intimation being that the court should furnish from his memory such evidence and charge and prepare for relators an entire and true bill.

*15That a judge who has presided at a trial is not required by law to prepare a bill of exceptions for counsel, and that he is only obligated to sign a “true” bill, and when the adverse party files an objection or amendment to correct the same, is fully established in the case of *State*v. *Todd,*4 Ohio, 351. As said by the court:

> “The bill of exceptions, is in practice, and by law, to be signed and sealed only, not to be prepared by judges; the only obligation upon the judge, is to sign and seal a true bill of exceptions. But the object of the relator is not to compel the judges to sign ,a correct bill of exceptions, but to sign the bill offered by relator. * * * The power of determining whether a bill of exceptions is true, or not, is vested in the judges to whom it is presented for signature. * * * If the court had granted a rule to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which had been offered to him. The court granted the rule to show cause, and the judge has shown cause, by saying that he has done all that can be required of him, and that the bill is not such a one as he can sign. Nothing is more manifest, than that the court can not order him to sign such a bill of exceptions. ’ ’ See *Ex parte Bradstreet,*29 U. S. (4 Pet.), 105, 106.

It will be remembered that in the present ease the court refused to sign the bill of exceptions because it was not a “true” bill; that he had suggested to counsel to have the testimony taken down as given; that thereafter he oxered his assistance in preparing a correct bill and that he offers to sign any “true” bill that is presented to him; but it is insisted upon by counsel that he sign the particular bill presented to him.

In the case of *Creager*v. *Meeker,*22 Ohio St., 207, it is said in the syllabus that:

> “An application for a mandamus to compel a judge to sign a bill of exceptions, should be accompanied by the bill that was tendered to him for his .allowance. Where the answer in such case shows that the defendant is willing to sign a true bill, but denies that the bill presented is true, the writ must be refused, as the right to determine as to the truth of a bill .of exceptions is vested in the judge to whom it is presented.”

*16And in the ease of *Shephard*v. *Payton, 12*Kans., 616, the syllabus is:

> ‘ ‘ That the decision of the trial judge that a 'bill of exceptions tendered to him for signature is untrue is conclusive and final and the Supreme Court will not, upon mandamus, hear testimony, or compel him to sign it.”

The court has judicially decided that the bill which was presented to him was not a true bill, and under the authorities above cited the court was acting within its proper jurisdiction.^ It being conceded that the bill was not a true bill which counsel had presented to the judge to sign, it is clearly evident that this court would not have the power in this proceeding to command him either to prepare a 'bill of exceptions for counsel nor to sign the bill which was presented to him.

The writ is, therefore, refused and judgment is rendered for the defendant.

Grant, J., and Lieghlby, J., concur.