ON APPLICATION FOR REHEARING
Decided Oct 7, 1936
By THE COURT
Submitted on application for rehearing, consisting of two grounds:
"1. That the failure to file the bill of exceptions in the cause, within the 40 day limitation, was not jurisdictional and that the defendant appellee waived any objection thereto by failing to file said objection in the cause within 10 days after such bill of exceptions was filed therein.”
And,
“2. That the trial court extended the time for filing such bill of exceptions, as shown by the records herein, to-wit, the trial court’s endorsement upon said bill of exceptions, and that the same was filed within such extended time.”
We undertook specifically to consider and answer the first ground of the application for rehearing. The second ground was covered by implication.
It may be granted that there is no question of jurisdiction involved in the failure to file the bill of exceptions. The jurisdiction to entertain and consider the proceedings on appeal is covered by another statute. The bill of exceptions, when needed, is of value on one question only, namely, the consideration of the factual proof as it relates to any questions urged in the assignments of error. We overruled the motion of the appellee to strike the appeal proceedings from the record .because they are regular and filed within time and the court does have jurisdiction and will take cognizance of the proceedings.
The ten days after the filing of the bill of exceptions with the trial court, within which any adverse party may file any objection or amendment he proposes to such bill for its correction, relates to the composition and contents of the bill and in no wise affects or is affected by the language of the other section, namely, §11564 GC, which controls the time of filing the bill of exceptions; nor could the trial court by any notation on the bill of exceptions waive or change the mandatory provisions of the controlling section, §11564, GC.
The propositions which we set forth in our original opinion and have reiterated here are well illustrated in the case of State ex Anderson v Spence et, Judges, 94 Oh St, 252, and Luff v The State, 112 Oh St, 102.
In the former case error was prosecuted from a judgment entered by the Court of Appeals upon the trial of the case on appeal from the Common Pleas Court. The bill of exceptions not having been filed within the statutory time, the Court of Appeals refused to allow and sign it, whereupon an action was instituted in mandamus to compel the court to sign the bill. The second proposition of the syllabus is:
“In such a case, where a bill of exceptions is not filed within the statutory time, the judges of the Court of Appeals are without authority to allow and sign such bill, and this court can not compel them to allow and sign the same.”
Luff v State, supra, was a criminal case in which the provisions of §13680, GC, applying to the filing of a bill of exceptions in such case, were controlling. Judge Matthias writing the opinion, after quoting the section, said:
“No argument can modify the mandatory effect of such language; even an order of the court can not extend the time within which a bill of exceptions may be filed beyond the limit fixed by the statute, which is 30 days. In no case can it be more than 30 days.”
The nppication will be denied.
BARNES, PJ, HORNBECK and BODEY, JJ, concur.