dissenting. I dissent because the interests of justice would be better served if this case were to be decided on the merits. The relator desires to construct a multi-million dollar apartment complex in the respondent city. The issues posed are of great consequence first to the relator who wishes to make a substantial investment which would provide an economic stimulus to the community and second to the respondent city which desires to know whether it can, under its police power, prevent the large apartment complex from being built. Already substantial sums of money have been expended in this litigation and in preparation for it.
Over the past centuries, legal procedures have evolved toward the goal of deciding cases on their merits. Our recent decision in Porter v. Fenner (1966), 5 Ohio St. 2d 233, is a current example of this evolutionary process. The first sentence of that opinion reads,
“No person should be denied the assertion of a cause of action on captious or purely technical grounds and thereby be deprived of his ‘day in court.’ ”
Indeed, this is so, because people enter our courts, not to test their lawyers’ skill, but to settle their legal disputes.
The majority opinion and decision is looking backwards. It deprives appellant of its rightful appeal for failure to have the bill of exceptions certified — the omission of the performance of a purely ministerial duty. It is important to note that the typed transcript is before the court, that it was forwarded to this court by the Court of Appeals as the transcript of testimony, and that its authenticity is undoubted. Nevertheless, the omission of the certification is said to be dispositive.
The General Assembly has spoken on precisely this problem. Section 2321.14 of the Revised Code reads:
“When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction.”
In a case of this importance where the error is purely formal, the court’s disposition is unfortunate. It is clear to me that this is an appropriate case for the exercise of the discretion which the General Assembly has expressly given us to be exercised “when justice requires it.”