Opinion
No. 2006
Decided November 16, 1948.
Appeal — On questions of law and fact, dismissed — Retained as appeal on questions of law — Bill of exceptions — Time fixed for settlement and filing — Section 11564, General Code — "Settlement" and "filed" synonymous and refer to trial court — Motion to strike — Assignment of errors and brief — Order fixing time for filing based on rule — Extension of time — Good cause for granting.
1. When an appeal on questions of law and fact is dismissed and the case is retained as an appeal on questions of law and an order is made requiring appellant to settle and file a bill of exceptions within 30 days pursuant to the provisions of Section 11564, General Code, the settlement and filing of the bill of exceptions refers to the settlement and filing in the trial court. The term "settlement" is used synonymously with "filed."
2. Where an appeal on question of law and fact is dismissed and the case is retained as an appeal on questions of law, and the court makes an order under Section 11564, General Code, requiring appellant to settle and file a bill of exceptions within 30 days, and a bill of exceptions is filed in the trial court within 30 days, a motion to strike the bill of exceptions will be overruled.
3. An order of the court requiring appellant to file an assignment of errors and brief within a period of 30 days from the date of the order is not based on any statutory provisions but on rule.
4. Where appellant within time presents an application for an extension of time within which to file an assignment of errors and brief, the court in the exercise of a broad discretion will grant a reasonable extension.
5. The inability of counsel for appellant to prepare an assignment of errors and brief because of the unavailability of the bill of exceptions is a sufficient showing of "good cause" for granting a reasonable extension.
APPEAL: Court of Appeals for Montgomery county.
ON MOTIONS.
Messrs. Smith, Schnacke Compton, for appellee.
Messrs. Davis, Davis Handelman and Mr. John Ober, for appellants.
This cause is submitted on two motions of appellants for extension of time within which to file an assignment of errors and brief, and, also, on motion of appellee to strike the bill of exceptions from the files and to dismiss the appeal on the ground that the assignment of errors and brief were not filed within time.
On August 3, 1948, the five appellants were found guilty of contempt for violating an injunction growing out of a strike at the Univis Lens plant. No motion for new trial was filed. On August 3, 1948, each appellant filed separate appeals from the order entered on August 3, 1948. All these appeals were filed on questions of law and questions of law and fact.
On August 20, 1948, these five appeals were ordered consolidated under case No. 2006. On August 20, 1948, the court dismissed the appeal on questions of law and fact and retained the appeal on questions of law and further ordered the appellants to prepare, settle and file their bill of exceptions within 30 days from the date of the order, and also to file within the same time the assignment of errors and brief. The 30-day period expired on September 20, 1948.
On September 18, 1948, counsel for appellants filed a motion requesting an extension of 15 days within which to file an assignment of errors and brief. In accordance with the practice in this court, counsel for appellee were given the customary period of time within which to file a memorandum opposing the motion. On October 4, 1948, counsel for appellants filed a second motion requesting an extension of 60 days within which to file an assignment of errors and brief.
On September 14, 1948, the bill of exceptions was filed in the trial court and on October 4, 1948, it was filed in the Court of Appeals.
On October 13, 1948, counsel for appellee filed a motion to strike the bill of exceptions and also to dismiss the appeal on the ground that the bill of exceptions and the assignment of errors and brief were not filed within the 30-day period as ordered.
The order under date of August 20, 1948, requiring appellants to file their bill of exceptions within 30 days was made in pursuance to the provisions of Section 11564, General Code. Rule VII of the Courts of Appeals has no application to an order made under the provisions of that section. The "settlement" of the bill of exceptions as used in that section refers to the settlement in the trial court. The term "settlement" is used synonymously with "filed." The phrase "prepare, settle and file their bill of exceptions in said consolidated case" as used in the order under date of August 20, 1948, refers to the filing in the trial court and not in this court. The bill of exceptions having been settled and filed in the trial court within the 30-day period, the motion to strike the bill of exceptions will be overruled. Kennedy v. Mancini, 22 Ohio Law Abs., 607.
That part of the order which required appellants to file an assignment of errors and brief within a period of 30 days from the date of the order was not based on any statutory provisions but on rule. The first motion for an extension of time was filed on September 18, 1948. Thus it appears that the application for an extension of time was made two days before the 30-day period expired. When appellant seasonably presents his application for an extension to the court within time, the court has customarily exercised a broad discretion in granting a reasonable extension. This motion was not promptly decided due to the fact that information was brought to the attention of the court that counsel for appellants and appellee would agree on a reasonable extension. No such extension was finally agreed to and by reason of which appellants were prompted to file a second motion for an extension of 60 days within which to file an assignment of errors and brief.
This matter has been briefed on the theory that the failure of the appellants to file an assignment of errors and brief within the time prescribed in Rule VII or within the 30-day period as ordered by the court requires a dismissal of the appeal. This court has consistently held that where the time prescribed under Rule VII or under an order of the court made in pursuance to the provisions of Section 11564, General Code, has expired, and an assignment of errors and brief have not been filed, and no application for an extension is filed within time, the appeal will be dismissed. This case does not fall in that class.
In the instant case, appellants brought the matter to the attention of the court within time. The inability of counsel for appellants to prepare an assignment of errors and brief because of the unavailability of the bill of exceptions is a sufficient showing of "good cause" for granting a reasonable extension. A 60-day extension as requested in the second motion is considered to be unreasonable under the circumstances. The bill of exceptions has been available to counsel for appellants since October 4, 1948. We consider an extension of 15 days to be sufficient and reasonable.
The motion of appellee to dismiss the appeal will be overruled. The motions of appellants for an extension of time to file an assignment of errors and brief will be sustained. Appellants are hereby granted an extension of 15 days from the date the entry journalizing this opinion is filed within which to file an assignment of errors and brief. The appellee is given ten days thereafter within which to file an answer brief. The appellants are given five days after date of filing answer brief within which to file a reply brief, if they desire to do so.
Judgment accordingly.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.