*384 OPINION

Submitted on motion of Appellees to strike the Bill of Exceptions on the ground that it was not filed within the time prescribed by law.

There is no memorandum in support of the motion but it may be assumed that the motion is directed to the facts of record in the trial court. The motion for new trial was overruled December 30, 1946. The Bill of Exceptions was filed in the trial court on February 15, 1947, which was 47 days after the overruling of the motion for new trial.

The filing of the Bill of Exceptions in the trial court within 40 days after the overruling of the motion for a new trial, as provided in §11564 GC, is mandatory.

Pace v Volk, 85 Oh St 413; McEvoy v Ripley, 24 Abs 678; Bridgewater v Boyles, 29 Abs 362; Lutz v Lutz, 74 Oh Ap 517.

A Bill of Exceptions which is not filed in the trial court within 40 days after the overruling of the motion for a new trial will be stricken by the Appellate Court on motion. Kennedy v Mancini, 22 Abs 607; Eubank v Industrial Commission, 59 Oh Ap 189; Seifer v Industrial Commission, 29 Abs 52.

The motion to strike will be sustained.

MOTION TO AMEND

Decided March 26th, 1947.

OPINION

By THE COURT:

Submitted on motion of appellant to amend the notice of appeal to read: “Said appeal is on questions of law and fact,” instead of “upon questions of law, only.”

The action is one for divorce, which is a statutory proceeding in which an appeal on law and fact may not be taken. Furthermore, no appeal bond having been filed as required by §12223-6 GC, an appeal on law and fact could not be maintained. The motion to amend is overruled.