Summary
In Ferrebee v. Boggs (1969), 18 Ohio St.2d 87, 88, 47 O.O.2d 237, 247 N.E.2d 753, the appellant had filed her bill of exceptions (containing the evidence submitted to the trial court), but the clerk had failed to "officially stamp" it.
Summary of this case from Zanesville v. RouseOpinion
No. 68-712
Decided May 14, 1969.
Bill of exceptions — Properly perfected and filed — Duly filed in Court of Appeals — Judgment reversed and cause remanded — Refiled on second appeal but not officially stamped by clerk — To be considered by reviewing court.
APPEAL from the Court of Appeals for Athens County.
This appeal arises from a jury verdict in a wrongful death action which was entered for plaintiff, appellee herein, on April 3, 1967, in the Court of Common Pleas of Athens County.
Defendant, appellant herein, made a timely motion for new trial on April 12, 1967. The Court of Common Pleas refused to pass upon this motion, striking it from the record on June 19, 1967, for failure of appellant to comply with the court's rule requiring briefs to be filed with a motion for a new trial.
On June 28, 1967, appellant filed a notice of appeal on questions of law from the trial court's striking of her motion for a new trial. She properly filed a bill of exceptions in the trial court on July 24, 1967, which was allowed and approved by the trial judge. It was filed in the Court of Appeals on August 2, 1967.
The Court of Appeals, on January 3, 1968, reversed the trial court and remanded the cause for a ruling upon appellant's motion for a new trial. On January 20, appellee filed a notice of appeal to the Supreme Court. On April 24, 1968, this court overruled the motion to certify.
Thereafter, the Court of Common Pleas passed upon appellant's motion for a new trial, overruling the motion on July 3, 1968. From that order, appellant filed a notice of appeal in the trial court and the Court of Appeals, both on July 19, 1968. On August 6, 1968, the bill of exceptions from the July 24, 1967, appeal was refiled, as shown by the Court of Appeals docket, but the clerk of the court neglected to officially stamp it.
The Court of Appeals considered the case as if a bill of exceptions had not been timely filed, and therefore, on November 19, 1968, affirmed the judgment for plaintiff.
We granted appellant's motion to certify the record, and we consider the matter upon the record and the briefs filed on the motion to certify.
Messrs. Rowland Bridgewater Robe, for appellee.
Mr. Samuel B. Erskine, for appellant.
It is clear from the record, the briefs and oral argument that a valid bill of exceptions containing evidence submitted in the trial of March 1967, was properly filed and certified, as required by Section 2321.06, Revised Code, and was duly filed in the Court of Appeals.
The clerk's failure to officially stamp it cannot prevent the court from using it to consider issues on appeal. King v. Penn, 43 Ohio St. 57; Cincinnati Traction Co. v. Ruthman, 85 Ohio St. 62. See, also, Lewis v. Public Finance Corp., 9 Ohio App.2d 215.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration upon the merits, with instructions to consider appellant's bill of exceptions.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER, HERBERT and DUNCAN, JJ., concur.