Senner v. Danewolf

6 P.2d 240, 293 P. 599, 139 Or. 93

• Court: Oregon Supreme Court
• Decided: February 16, 1932
• Status: Published

Opinions

ROSSMAN, J.

The plaintiff, who was successful below has moved to strike from the files the bill of exceptions filed by the defendants on the ground that the time within which it was presented to the circuit court was in violation of Oregon Code 1930, § 2-703. The material provisions of that section of our laws are:

“A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within sixty (60) days after the entry of the judgment or decree, or within such further time as may be granted by order of the court.”

The judgment was entered April 23, 1930; thus the sixty days granted by the above enactment to the defendants as a period within which they could present for settlement their bills of exceptions, expired June 22, 1930. No bill was tendered, however, within that time, nor was any allowance of further time obtained within the sixty-day period; but, on July 15 the defendants obtained an order of the circuit court granting them “ three weeks additional time in which to submit bill of exceptions.” Within the latter time the bill was presented.

The sole question upon which our conclusion depends is whether the circuit court was without power to grant further time after the original sixty-day period had expired; or stated otherwise, the issue for determination is, must a prospective appellant obtain, before his original period has elapsed, the privilege of filing a tardy bill. The act which governs the outcome of this issue certainly does not expressly require that “the further time” must be procured before the original time has elapsed; nor does it do so by implication. After granting to all prospective appellants sixty days for the above purpose, it makes provision for delayed appellants by permitting them to file their bills “within such further time as may be granted by order of the court.” The sixty-day period is allowed to all, but the “further time” is available only when granted by an order. Whether it should be allowed is dependent upon the sound discretion of the circuit court. So far we have considered all of the language of the statute, and still have found no requirement that the tardy appellant must obtain further time within the sixty-day period, and hence conclude that there is none. Possibly the Legislature believed that occasionally it would be as unjust to compel the appellant to obtain within the sixty-day period the privilege of filing a delayed bill as to file the bill within that time.

The mere fact that the order granting the further time was obtained ex parte, if that is a fact, and does not recite the reasons which moved the court into action does not show an abuse of discretion. All presumptions are in favor of regularity, and it is incumbent upon the party who attacks the order to prove an abuse of discretion.

It follows that the motion must be denied.

Belt, Bean, Brown, Band, and Kelly, JJ., concur.