Sit You Gune v. Hurd

120 P. 737, 61 Or. 182, 1912 Ore. LEXIS 45

• Court: Oregon Supreme Court
• Decided: February 6, 1912
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Eakin.

The summons was served on August 4, 1910. The return of service was indorsed thereon in the following language:

“State of Oregon, County of Clatsop- — -ss.

I hereby certify that on the 4th of August, 1910, at Astoria, Clatsop county, State of Oregon, I served the within summons on the within-named defendant, O. W. Hurd, by delivering a true and correct copy thereof, prepared and certified to by me as sheriff of said county, Oregon, together with a copy of the complaint, certified to by G. C. Fulton, one of the attorneys for plaintiff, to O. W. Hurd personally and in person.

M. R. Pomeroy, Sheriff.

J. J. Leonard, Deputy.”

On August 11, 1910, a stipulation was filed in the action as follows:

“It is hereby stipulated and agreed, by and between the attorneys for the respective parties, C. W. & G. C. Fulton for plaintiffs, and A. W. Norblad for defendant, that said defendant shall have ten days from the date hereof ^within which to plead answer or demur or make such motion as he shall see fit in the said cause; it being' understood that this stipulation is not considered in any wise a general appearance of said defendant.

[Signed by the attorneys.]”

On August 20, 1910, defendant filed a motion to quash the service of summons. The motion was denied on September 13, 1910, and defendant refused to plead further. Judgment was render against the defendant as prayed for in the complaint, and defendant appeals.

Two questions are raised on this appeal: (1) Can the motion to quash the service of summons be heard on affidavit in this court, in the absence of a bill of exception? (2) Does the stipulation filed constitute a voluntary appearance?

Defendant, on August 20, 1910, ’ filed in the case a notice that on August 31st he would move to quash the service of summons, which notice was accompanied by a motion, stating that he appeared specially for the purpose of the motion, and for no other purpose, based upon an affidavit of O. W. Hurd, together with the copy of summons and complaint as exhibits, namely:

“Moves the court to quash, annul, and set aside the service of summons and service of copy of complaint in said action or pretended service of summons and copy of complaint herein, for the reason that the said copy of complaint was not prepared and certified to by the plaintiffs, their agent or attorney, or by the county clerk, in compliance with Section 55 of Bellinger & Cotton’s Annotated Codes and Statutes of Oregon.”

There is no bill' of exceptions accompanying the record, and defendant by the motion seeks to impeach the sheriff’s return of service by proof that it is not true. This proof can only be brought to this court by a bill of exceptions. In Farrell v. Oregon Gold Co., 31 Or. 463 (49 Pac. 876) it is stated that papers filed in a law action, other than those designated by Section 272, subd. 2, Hill’s Ann. L., as constituting the judgment roll, such as affidavits filed in support of a motion, cannot be considered by the appellate court, unless they are properly incorporated in a bill of exceptions. This identical point was also decided adversely to defendr ant’s contention in Multnomah Lumber Co. v. Weston Basket Co., 54 Or. 22 (99 Pac. 1046: 102 Pac. 1). Also see cases cited in those cases. In this case, there being no bill of exceptions, we cannot consider the affidavit of defendant and the exhibits; and therefore the sheriff’s return is sufficient to support the judgment. This renders it unnecessary to consider the other question.

The judgment is affirmed. AFFIRMED.

Decided March 5, 1912.