BILL OF EXCEPTIONS.

[Hamilton Circuit Court,

January Term, 1894.]

Smith, Swing and Cox, JJ.

#### * Emma D. Bowen v. Theodore Gazlay, Admr.

Where Bill of Exceptions Contradicts the Journal Entry, the Former Controls.

While a journal entry may state certain facts to exist as to a bill of exceptions, yet, if the bill itself, which is a part of the record of the case, shows the statement of the journal to be untrue, the journal entry will not control, but the fact, a£ shown by the bill-of exceptions, must stand, and a motion to strike the journal entry from the files will be granted.

Error to the Court of Common Pleas of Hamilton county.

*

This decision is followed by the same court in Upham *Mfg.*Co. v. Gibson, 8 Circ. Dec., 127.

Swing, J.

This case is in this court on error, and was heard upon a motion to strike the bill of exceptions from the files.

The plaintiff in error brought an action in the court of common pleas against the defendant in error March 14, 1892, and service-was had upon the same day.

The case was tried from March 15 to 20, 1893, a verdict being returned for the defendant. A motion for a new trial was filed, which was overruled April 1, 1893. April 1, (or April 2, at the furthest) was the last day of the January term, at which said cause was tried.

The journal shows that on April 1. 1893, a bill of exceptions was allowed, signed and filed in the case, and the bill of exceptions filed in this court is marked, "filed April 1, 1893, in said court. ” The bill itself shows the following:

> "Witness my hand and the seal of this court, this 20th day of May, A. *D.,*1893. Milder Outcalt, Judge of the Court of Common Pleas.”

The provision of the statute applicable to the signing of bills of exceptions which governs this case, was the law of April 15, 1890, 87 O. L., 206. Under this act, a bill of exceptions was required to be presented for allowance within forty days from the end of the term, with a proviso that the trial judge might extend the time for signing ten days beyond the forty days, and when so extended the same was to -be endoisecl on the bill bv said judge. No endorsement of that kind appeared on rids bill._

*441*Mallon, Coffee & Mallon,*for plaintiff in error.

*Smith &*Kuhn, and *John McMahon,*for defendant in error.

We think this bill of exceptions must be deemed to have been signed as of May 20. 1,893, and the statement of the judge that it was signed as of April 1,. can not have the effect to make the bill bear that date as to the time when signed. The bill was actually signed on May 20, but while the judge says so, he probably sought to have it bear date in law as of April 1, 1893. But we do not think the court has such power. The second proposition of the syllabus in the case of *Bushy*v. Finn, 1 O. S., 409, is as follows: “A bill of exceptions must be signed and sealed at the time the exceptions are taken, and it cannot be amended after that term. A *nunc pro tunc*order made at a subsequent term to the effect that a paper not identified by the bill shall be considered as a part of it, is a nullity.”' The court, on page 414, referring to this action of the court, say: “This is-certainly a curiosity in the history of judicial proceedings. The statute requires-a bill of exceptions to be signed and sealed at the time at which the exceptions are taken, and it cannot be done afterwards; but if the plan here attempted is permissible, signing and sealing are unnecessary, and a new journal entry will answer for a bill of exceptions, and instead of a bill being perfected at the time at which the exceptions are taken, as is required by statute, it may be completed at any subsequent term, even after the original papers are in the court of errors, by a *nunc pro tunc*order, and that made by different judges from those who-signed and sealed the bill.”

From the end of the term until the signing of the bill was forty-nine days, nine days beyond the time allowed by the statute. Such a bill would be a nullity, and could not be considered by this court. But the journal entry in this-case recites that “April 1, 1890; this day comes the plaintiff, and presents to the court her certain bill of exceptions, which the court finding to be true, is allowed,, signed and sealed, and made a part of the record. Bill of .exceptions filed by leave.” But the record discloses no bill of exceptions corresponding to the recital of the journal entry. What we do find is a bill which says it was signed May 20, 1893. Under these facts what is the rule of law? In the Shillito, *et al.,*v. Thacker, 43 O. S., 63, the court say: “A paper purporting to be a bill of exceptions, but which is not signed as required by statute, will not be considered as a part of the record, although the journal entry in the case recites that a bill of exceptions was duly signed, sealed and allowed, and ordered to be made part of the record, and no other paper purporting to be a bill of exceptions appears in the files of the case.” And in the *Wagner*v. Ziegler, 44 O. S., 59-63, the court say: “A paper purporting to be a bill of exceptions, signed by one judge only of the three judges holding the district court, will not be considered as a part of the record, although the journal entry in the case recites that a bill of exceptions-is presented, which, being found by the court to be true, is allowed, signed and sealed and made a part of the record, and no other paper purporting to be a bill of exceptions appears in the files of the case.”

These decisions conclusively settle the question in this state, that while a journal entry may state certain facts to exist as to a bill of exceptions, yet, if the bill itself, which is a part of the record of the case, shows the statement of the journal to be untrue, the journal entry will not control, but the facts as-shown by the bill of exceptions, must stand.

The bill of exceptions in this case, having been signed after the. time required by the statute, cannot be considered as a part of the record, and the motion to strike from the files being the proper motion, it will be granted.