STATE EX REL. JAMES FORBES V. WILLIAM F. FIEDLER.

1. TRIAL JUDGE MUST REASONABLY ASSIST IN PREPARATION OF BILLS OF EXCEPTION. The trial judge cannot arbitrarily refuse to allow and sign a bill of exceptions on the mere excuse that the bill presented is not a true bill, when counsel is willing and offers to correct the bill in any particular sug gested by the judge; but, in such a case, a duty devolves upon the judge to assist reasonably in the preparation and settling of a true bill, such as making suggestions to counsel, stating his reasons for refusing to sign the particular bill presented, pointing out in what respects the one presented is not correct, etc.

2. MANDAMUS WILL LIE TO COMPEL JUDGE TO ASSIST IN PREPARATION OF BILL OF EXCEPTIONS.

Mandamus will lie to compel trial judge to correct, settle, allow and sign a true bill of exceptions, under the circumstances referred to in the first paragraph of the syllabus.

MANDAMUS.

Sanders, Cline & Sanders, for plaintiff:

State

Under Lan. R. L. 10344 and 10345 (R. S. 6751 and 6752), the return of a judge that a bill of exceptions is correct is traversable. v. Crites, 48 Ohio St. 142 [26 N. E. Rep. 1052].

The right to have a bill of exceptions settled, signed and allowed by the trial court, whether correct or incorrect, will always be protected and enforced by mandamus; if correct he must sign it as it is; if incorrect it must be corrected by him or at his suggestion and signed. State v. Clermont Co. (Judges), 1 Dec. Re. 51 (1 W. L. J. 358); Sansome v. Myers, 80 Cal. 483 [22 Pac. Rep. 212]; Santa Ana (City) v. Ballard, 126 Cal. 677 [59 Pac. Rep. 133]; Page v. Clopton, 71 Va. (30 Gratt.) 415; Poteet v. Cabell Co. (Comrs.) 30 W. Va. 58 [3 S. E. Rep. 97];

1 Dec. Vol. 16

Cuyahoga Common Pleas.

Bogue v. Murphy, 25 Ind. App. 102 [57 N. E. Rep. 726]; Scaife v. Land Co. 87 Fed. Rep. 308 [30 C. C. A. 661; 59 U. S. App. 28]; Trinity & S. Ry. v. Lane, 79 Tex. 643 [15 S. W. Rep. 477; 16 S. W. Rep. 18]; People v. Wayne Circ. Ct. (Judge), 24 Mich. 513; State v. Clough, 69 Wis. 369 [34 N. W. Rep. 399]; State v. Third Dist. (Judge), 50 La. Ann. 1125 [24 So. Rep. 189].

E. Levine, for defendant.

FORD, J.

This is an action in mandamus. The petition reads as follows:

"Your relator, James Forbes, says, that the defendant, William F. Fiedler, is the duly elected and qualified police judge of the police court of the city of Cleveland, Ohio, and that he has been such judge during all times mentioned in this petition.

"Your relator avers that in an action pending in the said police court at the February, 1905, term thereof, he was tried on an information charging him with violation of Secs. 711 and 712 of ordinances of the city of Cleveland, and the jury in said case returned a verdict against him of guilty as charged; that the said William F. Fiedler, prior to the trial of said case had duly qualified and entered upon the discharge of his duties as one of the judges of said court, and in the discharge of .said duties presided as judge of said police court during the trial of said case. That during the progress of said trial the said relator took numerous exceptions to the rulings of the said William F. Fiedler as such judge, but in order that the trial of said case might progress as rapidly as possible, consented that said exceptions might consequently be reduced to writing and allowed and signed by said William F. Fiedler as such judge and by him ordered to be made a part of the record in said case. And the said relator, on February 6, 1905, duly excepted to the overruling by the said William F. Fiedler as such judge of the relator's motion for a new trial in said case, and then and there desired and requested the said William F. Fiedler as such judge to allow this relator ten days in which to prepare and file a bill of exceptions, which was by the said judge then and there done.

"That afterwards, to wit, on February 8, 1905, this relator, having finished and completed a true bill of exceptions in said case, which said true bill is herewith presented, attached hereto, and marked exhibit A, tendered and presented the same to said William F. Fiedler as said judge and prayed the said William F. Fiedler as such judge to allow and sign the same and order the same to be made a part of the record in said case; and the said William F. Fiedler on February 16, 1905. arbitrarily, unjustly and without just cause, refused to sign, allow and make a part of the record said true bill of exceptions.

"That the said William F. Fiedler, judge of the police court, as

State v. Fiedler.

aforesaid, on said date and now, arbitrarily, unjustly and for the sole purpose of defeating this relator's right to proceed in error in said case, refused and now refuses to sign and allow said true bill of exceptions; that the said William F. Fiedler, fearing that because of his erroneous rulings and charge to the jury during the trial of said case, the judgment rendered by him in said case would be reversed and said erroneous and unjust rulings be exhibited to the view of this court, refused so to sign and allow said true bill of exceptions.

"This relator further says that as a pretense for an excuse to refuse to sign and allow said bill of exceptions, the said William F. Fiedler declared, without any reason therefor, that said bill of exceptions so tendered to him was incorrect, and arbitrarily, unjustly and with the sole purpose in view to defeat this relator's right to proceed in error, refused and still refuses to point out said alleged error, and in a high-handed and despotic manner refused to correct the same or give this relator any opportunity to correct the same.

"That this relator has offered to permit said William F. Fiedler to correct and change in any manner he might desire, or make any changes which he might indicate in said true bill of exceptions, but he absolutely and imperiously refused in any way to indicate said alleged error in said true bill of exceptions or to correct it.

"This relator further avers that at the present time he is imprisoned in the Cleveland workhouse at hard labor, and the said William F. Fiedler in defiance of law and the rights of this defendant refuses to sign said true bill of exceptions, and this relator has no remedy at law.

"Wherefore, this relator prays that a writ of mandamus may be issued to compel said William F. Fiedler as said judge, to allow, sign and make a part of the record said true bill of exceptions; or to correct, settle, allow, sign and make the same a part of the record; that a peremptory mandamus be directed to said William F. Fiedler as said judge, and that this court impose a fine not to exceed $500 on said William F. Fiedler, as provided by Lan. R. L. 10350 (R. S. 6757), for his refusal, without just excuse, to sign and allow said true bill of exceptions, and for such other relief to which he may be entitled." The defendant makes the following answer:

"The defendant for his answer says that he was and is one of the duly elected and qualified judges of the police court of the city of Cleveland; that he presided at the trial of said relator, who was charged with being a suspicious person and tried on same at the February, 1905, term thereof; that sundry exceptions to the ruling of the court were taken during said trial of said relator; that the said relator had been convicted of said charge and that a motion for a new trial had been filed by said relator; that a bill of exceptions was filed in said cause and that he, the said William F. Fiedler, was requested by said re