Redsecker v. Wade

134 P. 5, 69 Or. 153, 1913 Ore. LEXIS 143

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

Opinions

Opinion

Per Curiam.

The plaintiff respondent here moves the court to strike from the files.the defendant’s bill of exceptions filed June 16, 1913, and sundry exhibits filed on the following day. He states as grounds for his motion:

_ “ (1) The alleged bill of exceptions does not, in relation to any exception therein noted or mentioned, contain any evidence or other matter necessary to explain such exception or any exception therein.

“(2) Prom the transcript of testimony attached to the said alleged bill it affirmatively appears that there was introduced at the trial documentary evidence, consisting of some 50 exhibits, none of which exhibits are either attached to or for identification referred to by mark or data (sic).

“(3) The said bill of exceptions does not conform to the requirements of Section 171 of Lord’s Code, nor the amendment thereof on page 650, Session Laws of 1913.

“ (4) The alleged exhibits are not identified, marked, or filed by the clerk of the Circuit Court or the trial court.

“(5) The alleged exceptions of appellant are, each and every thereof, to the admissibility of certain exhibits and documentary evidence, and the same are not stated in the bill nor any statement made to show in what error, if any, was made.”

1. Section 172, L. O. L., provides that “the statement of the exception, when settled and allowed, shall be signed by the judge and filed with the clerk, and thereafter it shall be deemed and taken to be a part of the record of the cause.”

The objections noted go to the form and structure of the bill of exceptions and should have been addressed to the trial judge, whose function it is to settle the terms of such a document.

2. Section 171, L. O. L., as amended hy Chapter 332, Laws of 1913, provides that “no particular form of exceptions shall be required. The objection shall be stated, with as much evidence, or other matter, as is necessary to explain it, but no more: Provided, however, that the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings had at the trial, including the exhibits offered and received or rejected, the instructions of the court to the jury, and any other matter material to the decision of the appeal.” The proviso in this section constitutes the amendment enacted.

The bill of exceptions on file contains a statement of the evidence sufficient to explain various objections urged, together with the rulings of the court thereon. At the end of 15 pages of such matter appears the following statement, signed by the trial judge:£ ‘ The foregoing, with the transcript of the testimony attached hereto, and the exhibits filed herewith, constitutes all the testimony offered and received in this case. And now, in order that the foregoing and the matters and things therein referred to may be made a part of the record, on due notice, this bill of exceptions is hereby settled and allowed this 6th day of June, A. D. 1913.” There is enough in this bill of exceptions to satisfy the mandatory part of Section 171, L. O. L. The language of the proviso is permissive in its signification. It is not to be construed to require that in every case the bill of exceptions must contain the whole testimony and all the proceedings had at the trial, together with the exhibits offered and received or rejected, etc.

3. The object of the law and the purpose of the bill of exceptions is to provide for this court a succinct and intelligible statement of the errors about which complaint is made on the appeal. In some cases this can be accomplished by a very brief statement. In others it may be necessary to send to this court everything mentioned in the proviso. We cannot settle a bill of exceptions nor decide objections to the one filed here, for that is the peculiar function of the trial judge. We do not decide that all the evidence is annexed, or that all or any of the exhibits are attached to or accompany the bill of exceptions. We only decide that there is a bill of exceptions here conforming to the mandatory requirements of the section defining such a paper. It is not amenable to the objections urged.

For appellant there was a brief over the names of Mr. II. G. King and Mr. William A. Williams, with an oral argument by Mr. King. For respondent there was a brief and an oral argument by Mr. M. O. Wilkins.

Department 1. Statement by Mr. Justice Ramsey.

This is an action to recover money alleged to be due upon a promissory note and upon certain accounts. The defendant set up several counterclaims. There was a verdict and a judgment for the plaintiff in the sum of $2,825. The defendant appeals. The facts appear in the opinion of the court.

Reversed.

The motion is overruled. Motion Overruled.