Cody v. Black

191 P. 319, 97 Or. 343, 1920 Ore. LEXIS 238

• Court: Oregon Supreme Court
• Decided: July 13, 1920
• Status: Published

Opinions

BENSON, J.

1. Defendant’s assignments of error numbered 2, 3, 4 and 5, challenge the correctness of the court’s rulings in admitting certain testimony-over defendant’s objections. None of these assignments is referred to in defendant’s briefs, and we must therefore treat them as waived and abandoned: Donohoe v. Portland Ry. Co., 56 Or. 58 (107 Pac. 964).

2. Assignments numbered 5 and 6, charge error in the making of findings of fact numbered 2 and 5. However, the record fails to disclose that defendant excepted to either of these findings, or that he requested different findings and excepted to the refusal of the court to make them. It follows that they cannot be considered upon this appeal: Tatum v. Massie, 29 Or. 140 (44 Pac. 494); Cassity v. Wilson, 76 Or. 595 (149 Pac. 1018).

3. This brings us to assignment of error numbered 1, which is:

“The court erred in overruling defendant’s objections to the testimony of the witness Frear, and the admission into the evidence of the case of the plat made by said Frear, showing the result of his survey of the premises involved: Bill of Exceptions, pp. 1, 2, 3 and 4.”

An examination of the bill of exceptions shows the objections to have been directed to the admission of the plat made by the witness, based upon the ground that in making the survey, of which the plat is an exemplification, it is not shown that he had made a test of his instrument or of his chain. The witness testified that the plat was made from the field-notes of his actual survey upon the ground, and that it was in every way accurate and correct. Under these conditions it was clearly competent, and the absence of tests of his instruments and his chain would go only to its weight and value; a subject with which, in the face of the findings, this court cannot be concerned.

Rehearing denied September 14, 1920.

On petition for rehearing.

Petition Denied. Mr. Oliver P. Coshow, for the petition. Messrs. Bice & Orcutt, contra.

Affirmed. Rehearing Denied.

The judgment of the lower court is affirmed.

McBride, C. J., and Harris and Burnett, JJ., concur.