Having reviewed the cases of Cincinnati Traction Co. v.Ruthman, 85 Ohio St. 62; Pace v. Volk, 85 Ohio St. 413;Luff v. State, 112 Ohio St. 102; Tenesy v. City of Cleveland,133 Ohio St. 251; Mayborn v. Continental Casualty Co. ofChicago, 165 Ohio St. 87; and Welfare Finance Corp. v. Estep,170 Ohio St. 391, and realizing that the requirement as to filing of the bill of exceptions in the trial court has always been considered mandatory, whereas the provisions relating to the duties of the clerk and the trial judge in regard to that bill of exceptions have been considered as directory only, it would seem that the only conclusion this court should come to is that, regardless of who is at fault, the litigant who is appealing should suffer if the bill of exceptions was not filed within the time provided by Section 2321.05 of the Revised Code (former Section 11564 of the General Code). *Page 479
The courts have never considered a filing of the bill of exceptions in the trial court as a "step required to be taken subsequent to the perfecting of the appeal," as it was something to be done in the trial court rather than in the reviewing court. However, Section 2321.05, Revised Code, was amended (126 Ohio Laws, 50), effective October 4, 1955, so that the law in regard to the filing of the so-called bill of exceptions now reads: "* * * and file them in the cause, not later than forty days after the perfecting of the appeal by the filing of the notice of appeal * * *."
The Legislature made this change with the knowledge that they had previously enacted Section 2505.04, which reads:
"An appeal is perfected when written notice of appeal is filed with the lower court * * *. After being perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal is jurisdictional."
While Section 2321.05, Revised Code, supra, is still subject to the interpretation that requirements for filing are still mandatory upon the parties, we believe that it is also subject to the interpretation that when considered with Section 2505.04, Revised Code, it is not jurisdictional. If so, the reviewing court does have some discretion where good cause has been shown to prevent a party to the action suffering detriment by reason of an unforeseen illness, such as prevented the court reporter in this case from completing work required so that the bill of exceptions could be filed within the time specified in the section.
In a county where the lawyers have relied upon the duly appointed court reporters to file the bill of exceptions and where they have faithfully performed this task, surely someone should have the power to do justice in an unusual situation involving statutory court appointees. (Sections 2301.18 and2301.19, Revised Code.)
In view of the Supreme Court's attitude as shown in the case of Welfare Finance Corp. v. Estep, supra (170 Ohio St. 391), and to insure a review of the situation in view of the amendment of Section 2321.05, Revised Code, I concur in the overruling of the motion to strike the bill of exceptions. *Page 480