Morrison v. Franck

110 P. 1090, 59 Or. 429, 1910 Ore. LEXIS 89

• Court: Oregon Supreme Court
• Decided: October 4, 1910
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Moore.

1. This is a motion to affirm a judgment. An abstract, in lieu of a transcript, was filed with our clerk March 29, 1910, within the time prescribed. The respondents’ counsel, on June 24, 1910, interposed this motion, based on the ground that no proper bill of exceptions had been sent up and that no question respecting the pleadings or the jurisdiction had been raised.

Rule 20 of the Supreme Court, as amended October 5, 1909, so far as applicable herein, is as follows:

“All motions must be filed within 10 days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction.”

The statute regulating the transfer of causes contains the following clause:

“Upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and thereafter the appellate court shall have jurisdiction of the cause, but not otherwise.” Section 553, B. «fe C. Comp.

One of the errors alleged is the refusal of the court to grant a nonsuit. The determination of that question requires a consideration of all the testimony introduced prior to the request for the special judgment. The sworn declarations of the witnesses occupy 144 pages of the printed abstract, but whether or not that volume contains all the testimony received is impossible to state, for no certificate of the judge is appended. It is unnecessary to speculate upon the sufficiency of the abstract, for it contains some of the testimony, and, as appellant’s counsel was required to set forth so much of the record as might be necessary, the quantum thereof must largely be a matter of choice, and any failure to embrace all the testimony is not a question of jurisdiction. Such being the case, the neglect to file the motion to affirm the judgment within the time limited therefor is fatal.

Statement by Mr. Chief Justice Eakin.

This is an action to recover part of the commission earned from a sale of real estate.

The complaint alleges that D. C. Pelton, being the owner of certain timber land, authorized the plaintiffs to sell the same at the price of $200,000, for which they should receive, as compensation, 5 per cent of the sale price, such authority extending until April 7, 1909; that during March, 1909, plaintiffs offered the land to the Crossett Timber Company, through its representative, A. Sprague; that defendant also had authority from Pelton to sell the land on the same terms, and that he was endeavoring to sell it to the same party; that the Crossett Timber Company agreed to purchase it, if plaintiffs and defendants would come to some agreement between themselves and Pelton as to the division of the commission; and “thereupon, in order to effect a sale, * * plaintiffs and the defendant entered into an agreement, whereby the plaintiffs would discontinue offering the same to any other party and assist the defendant in making a sale of said lands to the Crossett Timber Company, and if a sale should be made, through their joint efforts, or by either the plaintiffs or the defendant, to said Crossett Timber Company, then the plaintiffs were to receive, as their portion of said commission, the sum of $2,500,” less $58.75, a portion of the expense of defendant; that “the plaintiffs performed services for the defendant which resulted in the making of a sale of said lands to the Crossett Timber Company, and the defendant received the said commission of $10,000, and has neglected and refused to pay the plaintiffs said sum of $2,441.25, or any part thereof.”

The motion is therefore denied. Denied.