BILLS OF EXCEPTIONS.

[Warren Circuit Court,

May Term, 1888.]

Smith, Swing and Cox, JJ.

#### STATE EX REL. STICKELS v. J. W. O’NEAL, JUDGE.

Consent that Bill may be Subsequently Reduced to Writing Presumed.

Where during the trial of a case in the court of common pleas, a party took an exception to the ruling of the court, but consented that the trial proceed, and that his exceptions might be reduced to writing subsequently, and allowed and signed by the court; and where within three days after a verdict of a jury, the same party filed a motion for a new trial of the case, which was overruled by the court, to which ruling the party then excepted, and the court being then otherwise engaged, he then consented that the exception might subsequently be reduced to writing and allowed by the court, and on the same day the court adjourned *sine <Me,*without having signed a bill of exceptions in said case, and no entry was made on the journal of the court that it was to be kept open for the purpose of having placed thereon an allowance of the filing of a bill of exceptions in the case: Held, that the party so excepting:, having within 30 days after the end of said term presented a true and correct bill of exceptions to the said rulings of the court, was entitled to have the same signed and allowed by the court, and an entry of said allowance and filin ■ placed upon the journal of said term.

Mandamus.

Smith, C. J.

The question submitted for our consideration arises on a demurrer to thc| answer filed by the defendant.

The petition alleges substantially, that during the trial in the court of comniorl pleas of this county, of the case of Shekels v. Hall at the January term, 1888, ol said court, presided over by Judge O’Neal, the relator, who was the plaintiff irl said action, took numerous exceptions to the rulings of said judge. But in ordeil that the trial might progress as rapidly as possible, he consented that such excepl tions might subsequently be reduced to writing, and allowed and signed by the! judge and ordered to be made part ot the record of the case.

It further alleges that within three days after the return of a verdict againsl him, he filed a motion for a new trial, which was overruled by the court on till afternoon of the last day of the said January term, to-wit: March *26,*1888, tJ which decision the plaintiff at the time excepted, and in order that the business ol the court might progress (it being then engaged in the trial of another cause), thf relator consented in the manner aforesaid, that the said exception might be re| duced to writing subsequently; and that the court adjourned on that day *sine diA*before the bill of exceptions could be prepared and signed.

That on the 23d- of April, 1888, a true bill of exceptions (filed with the peti| tion in this case), was presented to the judge for allowance, but while admittina that it was true and correct, he refused to sign it — and the relator prays for a wril of mandamus requiring him to do so.-

The answer of Judge O’Neal to the alternative writ which was issued, admití many of the allegations of the petition, but denies that when the exceptions weiT taken by relator, or at any time thereafter during the term, did he (the relator) coni sent that said exceptions, or any of them, might be reduced to writing, allowef and signed, after the final adjournment and close of said term of court. He allege! that on the exception being taken to the overruling of the motion for a new trial he caused the journal entry thereof to contain a statement that plaintiff excepte! thereto, and that this was the only exception taken to such decision.

*223He further alleges that the plaintiff, during the continuance of said term of court, never consented that any bill of exceptions should be presented to him as judge, after the final adjournment and close of the said term. Nor did the relator, or his counsel, during said term, intimate to, or advise the court or the judge thereof, that any bill of exceptions would be taken in the cause, or that he would at any time present one to be signed and allowed- And that said plaintiff did not during said term, move or request the court to^keep the journal of said term open, so that the filing of a bill of exceptions might be noted thereon, and no such order was, in fact, made. That when the bill in question was presented to him for allowance, on April 23,1888, he refused to sign the same for the foregoing reasons, and because he believed that under the circumstances he Had no authority to do so.

To this answer the relator demurred, and the question thus raised is this: Whether, when exceptions are taken to the rulings of a court during the trial of a case, or to the overruling of a motion for a new trial, and a bill of exceptions by the consent of the person taking the exception, is not at once presented and signed before the case proceeds, or before the final adjournment of that term of the court, it is essential to the right of the' party excepting to have a bill signed within thirty days from the close of the term, that he should have applied to the court during the term, to have the journal kept open for that purpose, or- that an order to that effect be actually placed on the journal.

It was suggested to us in the argument on this question, that the practice in regard to this is different in different parts of the state, and that the circuit court in two of the circuits have held differently-on it. We have no knowledge in regard to this, not having seen any report of a case in which the question has been passed upon. We are aware, however, that ther’e has been a difference of opinion among the members of the bar on the point, and whether the journal entry referred to was necessary, or whether the effect of the státute itself was not to keep the journá.1 of the court open for the purpose of noting the filing of bills of exceptions, for thirty days after the final_ adjournment and without any order of the court. Unquestionably .the better and safer practice is to have the entry made, and so to avoid all controversy about it; but in view of the provisions of the statute, particularly since the passage of the act of March 11, 1887, amending secs. 5298 and 5301, Rev. Stat. (84 O. L., 69), and the decision of the supreme court in the case of The State ex rel. Otenberger v. Hawes, 43 O. S., 16, we are of the opinion that it is not essential that such journal entry be made or applied for.

It is the claim of the counsel for defendant that the fair interpretation of sec. 5002, requires that this shall be done, and if it is not, that the trial- judge has no right to sign a bill of exceptions after the term or to have an entry of its allownce to be made on the journal of the court for the term which has closed. That the language of the section, that “if it is to be signed after the term, the journal .ust be kept open,” fairly implies that notice must be given to the court that the ill of exceptions is to be presented after the adjournment, and then that the ction of the court itself is necessary to keep its journal open.

Looking alone to the provisions of this section, it does not seem to us that this, onclusion follows. It provides expressly that where exceptions are taken during he trial, the bill of exceptions must be signed before the case proceeds, “or f the party” (excepting) “consent, within thirty days after the term.” -Here the ption is given to the party excepting, tq have it reduced to writing and signed at nee, or to have the case proceed, and have it signed within thirty days after he close of the term; and if he does consent to have the case proceed, he has done 11 that the law requires and demands of him, and he is then entitled to present his ill of exceptions to the court at any time during the same term, or within hirty days thereafter, and is not bound formally to state to the court that he will resent his bill after the term, or move that the journal be kept open; but when uch exception has been taken .and consent given, the journal is by force of the *224statute kept open, so that the clerk may during the thirty days after the close of the term, note upon it the filing of the bill as allowed and signed by the court.

W. F. Eltzroth and J. E. Benham, for the relator.

John E. Smith and W. C. Thompson, for the defendant.

This construction of the statute in question, we think, is not only fairly warranted, but is required of us, in view of the decision of the supreme court in the Hawes case, before referred to. The first paragraph of the syllabus is as follows: “If, during the progress of a trial, or on the overruling of a motion for a new trial, the party excepting to the rulings of the court consent that the case proceed without his bill of exceptions being first' signed, he is entitled to the same right to have his bill allowed and signed within thirty days after the term, as he would have had during the progress of the trial, if such consent had nol been given.” And there is no suggestion in the decision, that it is incumbent or the party excepting to move the court to keep the minutes open, if this bill is nol signed before -the close of the term, or that he is bound to do anything more lhar to consent that the case proceed, without having his bill of exceptions first signed When this consent is once given, the statute itself fixes the rights of the party excepting, to have it signed during the term, “or within thirty days after the term/ and if not signed during the term, “the journal must be kept open and the allowance and signing thereof entered as of the term,” if duly signed within such thirty days.

The decision in the Hawes case was made under the statutes as they stood prior to the amendment of March 11, 1887, (84 O. L., 69), which amended secs. 5298 and 5301, in the particulars hereinafter stated, but which did not affect sec.. 5302, on which the decision was principally based. By this act, sec. 5298 was amended so as to allow the party time to reduce his exception to writing, nol more than thirty days after the term, instead of limiting it to the term. And sec. 5301, as amended, requires the party excepting to reduce his exception tc writing, and present it to the court for allowance within thirty days from the end of the term, the original section not having expressly provided when this should be done. It seems, therefore, to us, that it was the intention of the legislature, by these amendments, to make even more plain the right of the party desiring a bill of exceptions (where he has excepted to a ruling, but consented to have the case proceed without having his bill then signed) to present it for allowance within thirty days after the close of the term at which the decision complained of was made; and when signed, to have an entry of its allowance and filing upon the journal as of that term.

And for the purpose of this argument, it being admitted by the demurrer that all of these steps were taken in this case, and that the bill filed in the petition is a true and correct one, we think, on the admitted facts, that the trial judge was required by the law to sign it, and that the entry should be properly made upon the journal.