Decided 20 March, 1905.
On Motion to Supplement the Record.
Per Curiam.
1. This is a motion by respondents suggesting a dimunition of the record, and to have this court supplement the same with the instructions to the jury of the trial court. The instructions have not been sent up, and are therefore not a part of the record here. The declared purpose of thus having the record completed is to have it shown that, although the trial court overruled a demurrer to the first separate answer to the amended complaint, it in effect disregarded such answer by its instructions to the jury, and thereby cured the error, if any, in its ruling upon the demurrer; it being now insisted by the appellant that the trial court erred in that particular. The instructions were given orally and taken down in shorthand, but the notes were not extended and filed with the clerk until later, when they were certified to by the circuit judge as being full and correct, and this coprt is now asked to annex them to the record here. There is a bill of exceptions accompanying the record, but whether it is desired to have the instructions added to it, or simply to have the record supplemented thereby, is not entirely [59]*59clear. But in either view, we are of the opinion that the motion ought not to be allowed. If either party require it, the charge of the court must be given in writing, and when so given it must also be filed with the clerk (B. & C. Comp. § 132, subd. 6), and, being so filed, it becomes a part of the record in the case. Oral instructions apparently were not designed to be thus incorporated in the record. It is the office of the bill of exceptions to embody a statement of the events and holdings of the court during the progress of the trial and in the submission of the cause to the jury, and it is only by this method that a record of the trial is :nade up. All matters not otherwise required by law to be made a part of the files and record in the case are required thus to be certified, or else the appellate court cannot take cognizance of them: Farrell v. Oregon Gold Co., 31 Or. 463, 473(49 Pac. 876), and cases cited.
2. Hence it may r.eadily be seen that the certified oral instructions with which it is sought to have the record now supplemented are not pertinent for that purpose, because not a part of the record of the trial court; and much less are they a part of the bill of exceptions, because not incorporated therein. It is the province of the trial court, in a proper case, to correct, and if necessary supplement, the bill of exceptions; and, when so corrected and supplemented, this court will require that it be sent up so that the cause may be fully and fairly presented for determination: State ex rel. v. Estes, 34 Or. 196, 204 (52 Pac. 571); Bloch v. Sammons, 37 Or. 600 (55 Pac. 438, 62 Pac. 290); Nosler v. Coos Bay Nav. Co., 40 Or. 305, 308 (63 Pac. 1050). But, unless the matter is in some regular course incorporated in or made part of the record in the case, it is not entitled to be filed or considered here. The motion is therefore denied. MotioN Overruled.
Statement by Mr. Justice Moore.
This is an action by Samuel Casto against Emma Murray, T. E. Strong and C. D. Crookham, to recover the possession of a horse. The complaint, so far as deemed material, is as follows:
“That on or about the 15th day of July, 1903, William Murray was the owner and in possession of one chestnut colored stallion, named Diablo, [and keeping him in the stud at the fair ground near Salem, in Marion County, Oregon; and at said date said Murray employed said plaintiff to care for and attend said stallion, and said plaintiff entered into the possession of said stallion, and thereafter, under said employment, gave him all necessary care and attention] until the death of the said William Murray, which occurred on or about the 21st day of August, 1903, at the City of Salem, Oregon; [and that thereafter said plaintiff continued in the possession of said stallion, and cared for him, and gave him all necessary attention in the stud i, until on or about the 26th day of August, 1903, when said defendant Emma Murray, widow of said William Murray, then deceased, and claiming to be, and who was, the sole heir at law of said decedent, and claiming to be, and who was, the sole owner of said stallion, made and entered into an agreement with said plaintiff, by which the said plaintiff was to keep and care for said stallion in the stud for the season ending the 15th of August, 1904, upon the following terms and conditions, to wit.”
The terms of the contract are then set out and it is alleged that plaintiff duly kept them. It is also alleged :
“[That on and prior to the 26th day of January, 1904, and for a long time prior thereto, the said plaintiff was, ever since has been, and now is, the special owner of, and entitled to the immediate possession of, said stallion, named Diablo, under and pursuant to the terms and conditions of said contract made and entered into by and between said plaintiff and said defendant Emma Murray, as hereinbefore alleged ].” Free access — add to your briefcase to read the full text and ask questions with AI