Cincinnati Traction Co. v. Ruthman
| Decision Date | 31 October 1911 |
| Docket Number | 11919 |
| Parties | Cincinnati Traction Co. v. Ruthman. |
| Court | Ohio Supreme Court |
Filing bill of exceptions - Duty of trial judge - Sections 5301 and 5301a, Revised Statutes - Law will not permit a party to suffer by neglect of duty of public officer, when - Signing by judge of bill of exceptions - Ministerial and not judicial act - Bill of exceptions allowed by judge aid transmitted to clerk - But through neglect, not signed by him - May be signed subsequently by judge as nunc pro tunc - Duty and rights of counsel as to such judicial neglect - Court procedure.
1. The general rule that the law will not permit a party to suffer detriment by reason of the neglect or misconduct of an officer charged with a public duty where such party, in the prosecution of a right, has done everything that the law requires him to do, and fails to attain his right wholly by such neglect or misconduct, the duty of the officer being one pertaining to such right, has application to a case coining within the purview of sections 5301 and 5301a, Revised Statutes, providing for the filing, allowance and signing of bills of exceptions.
2. The signing by the judge of a bill of exceptions taken in the court of common pleas, after the same has been settled and allowed, is a ministerial, and not a judicial act. Such act when omitted to be done at the time prescribed by statute by oversight of the judge, may be done by him in a proper case nunc pro tunc.
3. Where it is shown that in a cause tried in the court of common pleas the counsel for the excepting party has done all acts with respect to the preparation, filing and perfection of a hill of exceptions enjoined by statute, and the judge within proper time, has considered, corrected, settled, and having found the bill thus perfected to be correct, allowed the same, but, through oversight and inadvertence, has failed to sign the certificate attesting its correctness, and has in due time transmitted the bill to the clerk without such signature, a proper case is made for asking and obtaining from the reviewing court in which a proceeding in error is pending, authority to obtain the signature of such judge nunc pro tunc.
4. When the bill is perfected by the addition of such signature, it is as effectual in law to all intents and purposes as though the same had been signed by the judge within the time allowed for such signing by the section of the statute cited, and it is error for the reviewing court to strike off and refuse to consider such bill when perfected by the signature of such judge.
The failure of the counsel for the excepting party to notice the absence of such signature at or before filing the same in the reviewing court, or before the expiration of six months thereafter, is not negligence affecting the right of their client to insist on a correction of the bill by the addition of the signature of such judge.
The question involved in the case relates to the refusal of the circuit court to consider a bill of exceptions, and the sustaining of a motion to strike the same from the files.
It appears by the record that in a suit pending in the court of common pleas of Hamilton county, wherein John Ruthman (here defendant in error) was plaintiff, and The Cincinnati Traction Company (here plaintiff in error) was defendant, a verdict was rendered in favor of the plaintiff and against the defendant at the January Term, 1908, to-wit, January 15,1908. Motion for new trial was thereupon filed by the Company, which on March 11, 1908, was overruled and judgment rendered for plaintiff and against the Company. On March 28 a bill of exceptions on the part of the Company was filed with the clerk, notice of which was on March 31, 1908, served on the attorneys of record for plaintiff. April 2, following objections to the bill were filed by the plaintiff. April 8, affidavits were filed on the part of the plaintiff. On the same day the bill, with the exceptions and objections thereto, were transmitted to Honorable John G. O'Connell, the trial judge. April 11, affidavits on thwart of defendant were filed. April 13, the bill of exceptions and the objections and affidavits were received by the clerk front the judge, the bill endorsed "Allowed," But the bill did not then have attached, certifying to its allowance, the signature of the judge.
On June 25, following, a petition in error, with transcript of original papers including bill of exceptions were filed iii the circuit court; also entry of appearance of defendant in error. On December 5, following, a motion by the Company for leave to present bill of exceptions to the trial judge, and affidavit iii support of motion filed. December 10, motion by Ruthman to strike bill of exceptions from the files and to dismiss the cause on the ground that the bill had not been allowed and signed according to law, filed. December 23, a motion was made by the Company suggesting diminution of record, and an order on the clerk of the court of common pleas entered, directing him to certify up a complete and perfect transcript of the record and proceedings below. April 3, 1909, an entry was made in the circuit court ordering the bill of exceptions stricken from the files on the ground that the signature of the trial judge was not affixed to the bill within the time required by law, and entering judgment affirming the judgment of the court of common pleas, the circuit court finding that there is no error apparent on the record further than what might be shown by the bill of exceptions, which is not considered. A full bill of exceptions to this action of the circuit court was taken by the Com- pany, and is part of the record herein. It is shown by this bill that on the_____________ day of___________________1909, the bill taken in the common pleas was duly presented by the clerk to the trial judge, and said judge affixed his signature to the bill as of April 13, 1908, as appears thereon, and the clerk certified up to the circuit court the record as thus completed and perfected and the bill thus corrected and completed is the said bill and filed in the circuit court after the signature of the trial judge, certifying to its correctness, had been affixed. The bill of exceptions is certified by the trial judge as follows: "Witness the hand and seal of this court this 13th day of April, 1908, which signature is affixed this 26th day of December, 1908, as of April 13,1908.
It is to this order and judgment, and especially the striking off of the bill, that the plaintiff in error excepts and asks to have reversed. Further facts appear in the opinion.
Messrs. Kinkead, Rogers & Ellis, for plaintiff in error.
We believe the rule applies that where an individual in the prosecution of a right does everything which the law required him to do, he will not be prejudiced by the neglect or delay of the clerk of the court or of the judge. Lytle v. Arkansas, 22 How., 193; 3 Ency. PI. & Pr., 474; Denver v. Capelli, 3 Col. 236; Williams v. People, 25 Col. 251; Olds v. Railway Co., 165 Ill. 472; Ferris v. Bank, 158 Ill. 237; Parker v. Kuhn, 19 Neb. 394; McGee v. Beall, 63 Miss. 455; Hake v. Strubel, 121 Ill. 321; Weber v. Ins. Co., 80 Ill.App. 390; Chaplin v. Railroad Co., 227 Ill. 166; Mayo v. Hynote, 16 Fla. 673; Railroad Co. v. Morrison, etc., Co., 160 Ill. 288; Coal Co. v. Strunk, 89 S.W. 145; Pollock v. Aikins, 4 S. Dak., 374.
In each of the following cases the principle is followed that the signature of the judge may as a ministerial act be performed after the time limited therefor, provided that the appellant has performed all the steps incumbent upon him by law. Swem v. Green, 9 Co]., 358; Cochrane v. Little, 71 Md. 323; People v. Judge, 41 Mich. 725; Fechheimer v. Trounstiene, 12 Col. 282; Dyson v. Railway Co., 113 Ga. 327; Davies v. Railway Co., 71 Ohio St. 325; Pullman Co. v. Washington, 10 C. C., N. s, 105.
Mr. Frank Seinsheimer and Mr. Thomas L. Michie, for defendant in error.
First. Can a bill of exceptions which is unsigned be noticed? Second. Has the trial court a continuing jurisdiction to sign a bill of exceptions after the Statutory time?
The method of perfecting a bill of exceptions is purely Statutory, and the bill of exceptions must be perfected in Substantial compliance with the statute.
No matter what may be the form of the bill of exceptions, the essential requisite of the bill must always be the signature of the trial judge.
The present statute (section 5301) as construed in Davis v. Railway Co., 71 Ohio St. 325, was framed for the purpose of avoiding some of the more stringent provisions of former statutes in this state, but this case affords no warrant for the contention that all of the conditions and limitations governing the perfecting of the bill of exceptions have been destroyed.
This court has further construed sections 5301a and 5302 in the case of Buck v. State, 80 Ohio St. 395. Shilito v. Thacker, 43 Ohio St. 63; Origet v. United States, 125 U.S. 240; Kerley v. Vann, 52 Ala. 7; Gifford v. Hess, 15 Ind.App. 450: Busby v. Finn, 1 Ohio St. 409; Regan, Admx., v. McHugh, 78 Ohio St. 326; Britton v. Leslie, 14 C. C., 532; Hollister v. Judges, 8 Ohio St. 202: Wagner v. Ziegler, 44 Ohio St. 59; Jones v. Burch, 11 Tenn. (3 Lea), 747; Sewell v. Edmonston, 66 Ga. 353; Samuel v. Railway Co., 135 Ala. 501; State v. Hamilton, 214 Mo. 315; Lindquist v. Bank, Ill. App., 446.138
It was shown to the circuit court by the affidavit of the trial judge, no evidence being offered to contradict it, that he received from the clerk of the common pleas, a bill of exceptions in said case, April 8, 1903, and endorsed that he had So received...
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