Mutual Benefit Life Insurance v. Cummings

126 P. 982, 66 Or. 272

• Court: Oregon Supreme Court
• Decided: July 22, 1913
• Status: Published

Opinions

Mr. Justice Burnett

delivered the opinion of the court.

It .is provided in Section 554, L. O. L., that: “Upon the appeal being perfected the appellant shall, within 30 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 he necessary to intelligibly present the questions to he decided hy 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. * * ”

1-3. The terms of Section 555, L. O. L., are these: “When it appears by affidavit to the satisfaction of the court that the transcript is incomplete in any particular substantially affecting the merits of the judgment or decree appealed from, on motion of the respondent the court shall make a rule upon the clerk of the court below, .requiring him to certify as to such alleged omission, and if true, to transmit to the appellate court a certified copy of the pleading, entry, order or other paper omitted in the transcript; or, in such case, the respondent may move to dismiss the appeal, and the court shall allow such motion unless, on the cross-motion of the appellant, it makes a rule upon the clerk concerning such omission, as provided in this section, upon such terms as may be just. * * ” It was under this section that Sophia was attempting to proceed when she filed the motion which this court overruled. The motion was properly overruled for three reasons: First, it was not supported by affidavit as required by the terms of the section already quoted; in the second place, although it alleges that the omitted portions of the record are necessary on review in this court, yet that statement was a mere conclusion of law, and no facts were set forth, either by averment in the motion, or by affidavit which would inform the court so that it might reach the same conclusion of law suggested by the motion; in the third place, the decree, directing payment of the proceeds of the policy to Sophia and disregarding the claims of Evelyn, the administratrix, and Wilkins, has never been appealed from by anyone except Evelyn. So, as far as appears by anything before us, it has been acquiesced in to this day by both the administratrix and Wilkins. The decree of interpleader, discharging the complainant on payment of proceeds of the policy into court and directing the defendants to interplead, was a consent decree, and has never been and could not be disturbed by an appeal. It was not necessary to a complete understanding of the case to incorporate that decree at large in the abstract. Neither is the court concerned about the claims of those defendants, on the funds, which were disregarded by the court below and have not been made the subject of appeal. The situation is this: Both Evelyn and Sophia claim the fund. As between them the Circuit Court has decided in favor of Sophia, and Evelyn has appealed. All that is necessary to be decided by this court, as the appellate tribunal, is the question of which of these two parties is entitled to the money in dispute. It has nothing to do with the interests or claims of those parties who have acquiesced in the decision of the court below. Evelyn and Sophia, the only parties before us, must depend upon their own pleadings as illustrative of the questions to be decided. Neither of them can claim anything under-the pleadings of other parties. These three reasons furnish ample ground for the decision of the court in denying the motion of Sophia, suggesting diminutions of the record. The third applies with equal force to the motion now under consideration to strike out the respondent’s additional abstract of record, for it is an attempt to inject into the record matter which was denied by the ruling of the court on the motion already referred to.

4. There is yet another reason why the respondent’s additional abstract of record is improperly before the court, and should be stricken out. Section 555, L. O. L., already 'mentioned, provides a way by which the defective record can be corrected. Sophia elected to proceed under that section, and has failed for good and sufficient reasons already pointed out. Amplifying, so far as may be, Section 555, L. 0. L., Buie 7 of this court reads thus: “If the respondent shall deem the appellant’s abstract imperfect o.r unfair he may, within 10 days after receiving a copy thereof, deliver to the appellant’s counsel one, and to the clerk of this- court with proof of service upon appellant, 16 printed copies of such further or additional abstract as he shall deem necessary to a full understanding of the question involved in the appeal.” It is not necessary to decide whether the abstract of either party shall be compiled from the transcript lodged in the appellate court or from the papers on file in the Circuit Court. It is enough to say that the .respondent’s additional abstract of record must be filed within 10 days after receiving the appellant’s abstract. The certificate on this latter document-on file, signed by the counsel for Sophia, shows that they received copies of it July 15, 1912. As mentioned above, the respondent’s additional abstract was not filed in this court .until August 26, 1912, whereas, according to the rule, it should have reached the custody of the clerk by July 25,1912. Sophia was too late to operate under the terms of Rule 7, already quoted, and,' having elected to proceed under Section 555, L. O. L., she cannot now change her position and attempt to operate under Rule 7 after the period of 10 days, therein prescribed, has elapsed.

Department 1. Statement-by Mr. Justice Ramsey.

This is a suit in equity in the nature of a bill of interpleader brought by the Mutual Benefit Life Insurance Company of Newark, New Jersey, against Evelyn M. Cummings and Sophia J. Cummings to require them to interplead concerning the right to receive the amount of a policy of life insurance on the life of Harry A. Cummings, deceased.

The motion to strike out respondent’s additional abstract of record is sustained.

Motion to Strike Sustained.