Stephan v. Veterinary Medical Board , 113 Ohio App. 538 ( 1960 )


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  • I agree with my associates that Section 119.12, Revised Code, imposes a duty upon the Board of Veterinary Examiners to file a complete record of the proceedings before it within ten days of receiving notice of the appeal, and that its failure to do so is a violation of its duty. It was the board's clear duty to file the record, and upon its failure it could be required to do so by a writ of mandamus.

    I do not agree that the failure of the board to file the record within ten days operates as a discontinuance of the proceeding. If this is a civil, or quasi-civil, proceeding, and the Civil Appellate Procedure Act applies, then Section 2505.08, Revised Code, controls. It provides that "If the transcript and papers are not filed within said time [ten days] either party may apply to the court to which the appeal is taken to have the case docketed and the court shall order them filed."

    So far as I know, it has never been held that failure of the clerk to perform his duty would operate to the prejudice of the rights of either party to an appeal. And by the above statute, the failure of the party himself to file a praecipe is excused.State v. Suspirata, 71 Ohio App. 500.

    If this proceeding be regarded as a criminal or quasi-criminal prosecution, the same result is obtained. The Code of Criminal Procedure makes provision for undue delay in pursuing a criminal proceeding after its institution. These provisions will be found discussed in 15 Ohio Jurisprudence (2d), 423 et seq., Section 233 et seq. At page 426 therein, it is stated *Page 544 that "If, when the accused makes his application for discharge, whether during the time limited or at a subsequent term of court, the state is ready to proceed with the trial * * * he is not entitled to be discharged."

    In the case at bar, as soon as the board received notice of the absence of the record and papers by the filing of the appellee's motion for judgment, it asked leave of the court to file the record and papers at once. The court overruled this motion. In doing so, it is my opinion that the court erred.

    The judgment should be reversed and the cause remanded for further proceedings.

Document Info

Docket Number: No. 8787

Citation Numbers: 173 N.E.2d 389, 113 Ohio App. 538

Judges: O'CONNELL, J.

Filed Date: 6/27/1960

Precedential Status: Precedential

Modified Date: 1/13/2023