Fisher v. Kelly

38 P. 67, 26 Or. 249, 1894 Ore. LEXIS 94

• Court: Oregon Supreme Court
• Decided: October 29, 1894
• Status: Published

Opinion

Per Curiam.

Held, (1) that documentary evidence offered and admitted on the trial of an action at law cannot be made a part of the record on appeal in this court by copies certified to by the clerk of the trial court, but only by a bill of exceptions. (2) That in an action by a chattel mortgagee against an attaching creditor to recover possession of the mortgaged property, the defense being that the mortgage is void, because made to hinder, delay, and defraud creditors, the ruling of the trial court in granting a nonsuit cannot be reviewed on appeal unless the mortgage offered and admitted in evidence, or a copy thereof, is made a part of the record, because it may have been void as a matter of law on its face. (3) That while this court will not ordinarily dismiss an appeal for want of or because a bill of exceptions is defective, yet, where the only assignment of error is the ruling of the trial court in granting a nonsuit, and it is conceded at the hearing of the motion that unless the certified copies of the documentary evidence can be considered and deemed a part of the record, independent of the bill of exceptions, the appellant has no case, the motion to dismiss the appeal will be treated as a motion to affirm the judgment, and an order of affirmance entered accordingly.

Dismissed.