*47OPINION
By THE COURT:Submitted on motion of appellee consisting of two branches.
The first branch, to strike the bill of exceptions from the files because not filed within the time fixed by §11564 GC. The second branch to dismiss the appeal.
The first branch of the motion will be sustained.
The appeal is on questions of law. The decree was filed on August 1,1949, the bill of exceptions on the 12th of September, 1949. The provisions of §11564 GC, that the bill of exceptions be filed in the trial court “not later than 40 days after the decision of the court” has been held without exception to be mandatory by the Supreme Court and many times by this court.
Tenesy v. City of Cleveland, 133 Oh St 251; Robinson v. City of South Euclid, 146 Oh St 589; Gallagher v. Bexley, 30 Abs. 539; State v. Bond, 30 Abs. 592; Kennedy v. Mancini, 22 Abs. 60; Bulen v. Moody, 43 Abs. 608.
The second branch of the motion will be overruled.
It may be that some error to be assigned will be exempli-fled upon the record independent of the bill of exceptions.
MILLER, PJ, HORNBECK and WISEMAN, JJ.