BILL OF EXCEPTIONS.

[Sandusky Circuit Court,

December Term, 1897.]

Haynes, Parker and Hale, JJ.

(Judge Hale of the Eighth Circuit taking the place of Judge King.)

#### Riverside Rubber Company v. Horace S. Buckland et al.

1. Bill of Exceptions not Presented to Trial Judge in the Time Prescribed by Statute, will, on Motion, be Taken from the Files.

Where, in a journal entry setting forth the allowance of a bill of exceptions by a judge of the court of common pleas, it appears affirmatively that such bill of exceptions was not presented to the trial judge within the time provided by law, the circuit court will, on motion, strike such bill of exceptions from its files.

2. Statement as to Time such Bill of Exceptions was Placed in Hands of Trial Judge not Considered in such Motion.

The court will not consider in support of such motion a statement of the time such bill of exceptions was first placed in the hands of the trial judge contained either in an indorsement of such judge upon such bill of exceptions, or in an affidavit by such judge, or in another bill of exceptions allowed upon the signing of such original bill of exceptions to the party objecting to the allowance and signing thereof.

Parker, J.

This is a case in which error to the common pleas court of this county is sought to be prosecuted in this court, on account of alleged error made apparent by a bill of exceptions.

It is submitted to us upon a motion to strike the bill of exceptions from the files. In the court below there was a trial, a verdict of a jury, a motion for a new trial filed in due time, which motion was overruled on June 28, 1897, followed by judgment on the verdict. On August 17, 1897, fifty days after the overruling of the motion for a new trial, ihe trial judge by endorsement on the bill of exceptions extended the time for examination and allowance of the same for ten days after August 17th, and the same was allowed and signed on August 28d and filed in the court of common pleas on August 24th. This motion to strike the bill of exceptions from the files is based upon the ground that the bill of exceptions was not submitted to the trial judge for his signature not less than five days before the expiration of fifty days after the overruling of the motion for a new trial, as required by sec. 5802, Rev. Stat. In support of this motion, and as evidence of the fact that the bill of exceptions was not presented to the trial judge until the 17th day of August, or fifty days after the overruling of the motion for a new trial, the defendant in error has produced — First, the bill of exceptions, upon which appears the following endorsement by the trial judge: “This bill of exceptions first submitted to me this 17th day of August, 1897 (not having-been presented five days prior thereto), and time for examination and signing is hereby extended for the period of ten days from this date.

“'Defendant excepts,

S. A. Wildman,

“Judge of Sandusky county Common Pleas Court.

“Sandusky, Ohio, August 17, 1897.”

Second — The journal entry of the allowance and signing of the bill of exceptions, which reads as follows : “Be it remembered that on this-*6123d day of August, 1897, this cause came on for hearing upon application for allowance and signing of the bill of exceptions heretofore prepared and submitted to the court, it being agreed by counsel, and the court finding that said bill of exceptions was presented by counsel for plaintiff to opposing counsel on the 7th day of August, 1897, at 5:30 o’clock p. m. and not before, and was presented to Hon. S. A. Wildman, trial judge, on the 17th day of August, 1897, and not before, said judge not having been absent from his said district at any time after said trial, and said court having on the said 17th day of August, 1897, for the purpose of examining and signing said bill of exceptions, extended the time ten days, which extension was duly endorsed upon said bill of exceptions at the time, and the court having examined said bill of exceptions, and finding the same to be a true bill of exceptions, did on the 23d day of August, allow and sign the same and ordered it to be filed, but not spread upon the journal, to which extension of time and the endorsing oi the same and to the allowing and signing-of said bill, defendants, by their counsel, then and there duly excepted, and thereupon the defendants presented their bill of exceptions, which is here duly allowed and signed and ordered made a part of the record of this case and not to be spread upon the journal.”

Third — The affidavit of the trial judge to the same facts as are set forth in the journal entry just read.

Fourth — The bill of exceptions taken by defendant upon the allowance by the trial judge of plaintiff’s bill of exceptions, the allowance of which bill of exceptions for defendant, is recited in the journal entry, which I have just read.

Objection to the consideration of the statement in the endorsement by the judge on plaintiff’s bill of exceptions to the effect that it was first submitted to him on the 17th day of August, and that it had not been presented five days prior thereto, is urged on the ground that the only statement the trial judge is authorized to endorse upon the bill-is that of the extensiomof ten days, as provided by sec. 5302, Rev. Stat. We hold, following our decision in the case of Dwell® et al. v. Wilson, Assignee, 7 Ohio Circ. Dec., 611, that such statements being unauthorized, cannot be considered as affording evidence of the facts stated with regard to the time when the bill was first submitted to the judge; and that leaves no evidence upon the face of the bill of exceptions that it was not presented to the judge in due time. Following the same decision,- we also disregard the bill of exceptions taken on behalf of defendants. We also hold that the affidavit cannot be considered; and thus bring us to the journal entry. We understand the case of Heddleson v. Hendricks, 49 O. S., 297, as holding that the record showing the allowance of the bill of exceptions imports absolute verity, not only as to what appears therein affirmatively, but also as to the facts to be presumed from what thus affirmatively appears, and that evidence cannot be received to impeach the record either as to the facts affirmatively stated or those presumed. Jn that case the bill of exceptions appeared by the entry of allowance, as well as upon its face, to have been allowed within the statutory time; and the court refused to hear evidence tending to show that it was not presented to opposite counsel within the statutory time, holding, as we understand it, that such facts where the record is silent, are presumed to have been found by the trial judge before signing, and that the record of the allowance of the bill of exceptions includes and is conclusive upon such facts. Of course it does not iollow that if the bill of exceptions was not *62■in fact presented within the statutory time, the party objecting to its allowance would be without remedy, but in such case he would probably be required to seek an amendment of the record in the court where it was made. Here, however, we have a journal entry showing affirmatively that the bill of exceptions was not presented to the trial judge within the statutory time. It is urged that there is no authority for stating such facts in'the journal, and that therefore the court cannot take any notice of such statements when found there. That the statute provides simply for an entry of the allowance and signing of the bill of exceptions, and that all that may be stated beyond that naked fact is extra judicial.

*Chatterton,*of Toledo for .plaintiff in error.

*Judge Wickham, John Garver & Love,*of Fremont for defendant in error.

In Newman v. Becker, 54 O. S., 323, it is held that the conditions that the bill of exceptions shall be presented to opposite counsel and the trial judge within the period prescribed by the statute is jurisdictional. That the trial judge has no power or authority to allow or sign the bill unless these conditions have been complied with. As a rule we believe the record or journal of the court should show by affirmative finding or otherwise the existence of jurisdictional facts, or facts authorizing the court to act in the premises. If not always absolutely necessary it can hardly be said to be improper. We think from this holding with respect to the nature of these facts, and the holding in Heddleson v. Hendricks, *supra,*it follows that a finding of these jurisdictional facts, either affirmatively or presumptively, should appear upon the journal, and that when the affirmative finding rebuts the presumption of regularity in the steps taken, and when it shows that the statutory requirements have not been complied with, the court may, and on proper application must regard and give effect to such findings. To say that the record imports absolute verity as to certain facts either actually or presumptively found therein is to say that such facts properly appear or belong in such record.

The motion to strike the bill of exceptions from the files is sustained, and it appearing that all the errors alleged are predicated on the bill of exceptions, the judgment of the court of common pleas will be affirmed.