Campbell v. City of Portland

285 P.2d 529, 260 P.2d 1094, 204 Or. 654, 1955 Ore. LEXIS 308

• Court: Oregon Supreme Court
• Decided: June 29, 1955
• Status: Published

Opinions

PER CURIAM.

The plaintiff, Mabel Campbell, moves this court for an order striking from the files defendant’s purported bill of exceptions.

The last day for tendering a bill of exceptions in this case was June 15,1953. There is a factual dispute between the parties as to the actual date upon which tender was made. Defendant maintains that the proposed bill of exceptions was tendered to the clerk of the court on June 15, 1953. The clerk’s filing mark indicates it was filed on June 16, 1953. However, we find it unnecessary to pass upon and decide this question of fact.

It is admitted that a copy of the proposed bill, of exceptions was not served upon plaintiff, the adverse party, prior to its presentation to the clerk of the court. In fact, no such service was made until June 16, 1953, and after tender to the clerk and delivery to the trial judge.

The rules of the circuit court for the fourth judicial district, Multnomah county, effective June 1, 1952, provide:

‘ ‘ Rule 75. Any party to a civil or criminal action may within sixty days after the entry of final judgment tender a bill of exceptions.

“Rule 76. A copy of the proposed bill of exceptions shall be served on the adverse party or his attorney and thereafter presented to the clerk of the Court, who shall endorse thereon the date of its presentation to him, and the attorney shall thereafter deliver the same to the trial judge.”

Rule 75 is a restatement of a portion of § 5-703, OCLA, relating to the tendering of a bill of exceptions. The requirements of § 5-703, OCLA, as to the time element, are strictly construed.

Rule 76 requires service of the proposed bill of exceptions upon the adverse party before it is tendered to the clerk of the court and delivered to the trial judge. This rule violates no constitutional or statutory right of a party. It is binding upon the court and upon litigants.

Upon the authority of Hart v. State Industrial Accident Commission, 148 Or 692, 701, 38 P2d 698, the motion of plaintiff is sustained. The bill of exceptions will be stricken.