LUSK, J.
The ease is before the court on several motions of the respondent, State of Oregon, to strike from the record the transcript of testimony, transcripts of certain affidavits, and of a motion for a new trial, and two envelopes containing exhibits. The motions are based on two grounds: First, that the documents and exhibits referred to have not been made a part of the bill of exceptions, and, second, that the appellant (defendant in the court below) failed to comply with a rule of the circuit court requiring service of a proposed bill of exceptions on the opposing party.
On August 22, 1956, there was filed in this court a document entitled “Defendant’s Bill of Exceptions.” On the same day there were filed here two volumes of testimony authenticated by the official reporter. On the cover of the bill of exceptions is stamped the receipt of the county clerk of Benton County reading: “Received the 7th day of August, 1956. Ralph P. Schindler, County Clerk by Huida Wrigglesworth, Deputy Clerk.” The bill of exceptions consists of a statement of 22 exceptions taken by the defendant to rulings of the court, some prior to trial, most of them upon the trial. It contains a single reference to the transcript of testimony. Exception No. 8, relating to testimony received over the appellant’s objections, recites: “This testimony and evidence is too extensive to be set forth here in detail, but is contained throughout the transcript of testimony.” The certificate of the judge reads: ‘ ‘ The foregoing Bill of Exceptions is allowed. Fred McHenry, Judge.” The date of allowance does not appear. Attached to the bill of exceptions [598]*598is a proof of service by mailing of “the foregoing Bill of Exceptions” on the district attorney for Benton County on August 7, 1956.
On August 22,1956, there was also filed in this court a document entitled “Short Transcript,” which, along with the matters required by ORS 137.190 and 138.180, contains copies of a number of affidavits in support of a motion for change of venue, of an affidavit in support of a motion for inspection of a transcript of a statement made to officers by the appellant, of two affidavits in support of a motion for a bill of particulars filed by the appellant, and of a motion for a new trial. In the body of the bill of exceptions it is recited that the affidavits referred to are ‘ ‘ set forth in the transcript filed herewith.” There is a similar recital as to the motion for a new trial.
There also came to this court the two envelopes of exhibits above referred to. With the exception of State’s Exhibit DD no mention of the exhibits is found in the bill of exceptions. Exception 17 sets forth the objection to the reception in evidence of this exhibit made on the trial by counsel for appellant.
It is a basic rule of our appellate procedure that it is only through the medium of a bill of exceptions that evidence in a law action can be brought into the record for consideration by this court. Tellkamp v. McIlvaine, 184 Or 474, 481, 199 P2d 246; State v. Pulver, 159 Or 296, 297, 79 P2d 990, and cases there .cited. This rule applies as well to affidavits in support of motions for a new trial, change of venue, continuance, and the like. Harper v. Wilson, 185 Or 23, 26, 200 P2d 600; State v. Garner, 166 Or 1, 5, 108 P2d 274; State v. De Grace, 144 Or 159, 165, 22 P2d 896, 90 ALR 232; State v. McPherson, 70 Or 371, 373, 141 P [599]*5991018; State v. Finch, 54 Or 482, 487, 103 P 505; State v. Kline, 50 Or 426, 430, 93 P 237. And, while 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” (ORS 19.100 (2)), these matters will not constitute a bill of exceptions, nor any part thereof, unless they are duly authenticated by the trial judge. ORS 19.100 (3). Boice v. Boice, 196 Or 346, 248 P2d 1069; Tellkamp v. McIlvaine, supra, 184 Or at p 479; Hall v. Pettibone, 182 Or 334, 339, 187 P2d 166; Wallowa Land Co. v. McGaffee, 160 Or 298, 84 P2d 1116; State v. Chee Gong, 17 Or 635, 21 P 882.
In this case the circuit judge has not by his certificate identified or made a part of the bill of exceptions either the two volumes constituting the transcript of testimony or the exhibits, with the possible exception of State’s Exhibit DD. Under well-settled rules these matters are not part of the record and are not open for this court’s consideration.
This is the first time in our experience and observation that an attempt has been made to incorporate affidavits in the bill of exceptions by including copies of them in the short transcript and referring to them in the bill of exceptions in the manner above stated. The affidavits should be set forth in the bill of exceptions itself. The statute says: “The rulings excepted to shall be stated, with as much evidence, or other matter, as is necessary to explain them, but no more.” ORS 19.100 (2). There is no authority for including affidavits such as we are here concerned with in the short transcript, though it may be that by a liberal interpretation of the statute governing bills of exceptions we could hold that this unorthodox procedure is effective to accomplish what seems to have been the purpose of counsel and [600]*600the court. But, for reasons to be presently stated, it is unnecessary to decide that question.
Counsel for the appellant have suggested to the court the propriety of sending the case back to the circuit court for correction of the circuit judge’s certificate. There is no doubt of this court’s power to take that course, or of the power of the circuit judge in a proper case to amend the certificate so that the bill of exceptions will conform to the facts. State ex rel. v. Ekwall, 135 Or 439, 443, 296 P 57, and cases there cited. In United Brokers Co. v. Southern Pacific Co., 86 Or 607, 616, 169 P 114, this court appears to have itself allowed an amendment of the certificate to the bill of exceptions. If the opinion in the case means what it says, then this court erroneously exercised an authority reserved exclusively to a judge of the circuit court. ORS 19.100 (3), (4).
The suggested procedure would avail the appellant nothing, however, unless the trial judge were able to find that a bill of exceptions, which included the matters here in question, was tendered by presenting it to the clerk of the circuit court within 60 days after the entry of the judgment or within an extension of that time properly granted, in accordance with the requirements of ORS 19.100, and that such a bill of exceptions was actually allowed, but that through inadvertence or mistake the certificate failed to conform to the facts. No showing has been made in this court pointing to the existence of such a state of facts.
Free access — add to your briefcase to read the full text and ask questions with AI
LUSK, J.
The ease is before the court on several motions of the respondent, State of Oregon, to strike from the record the transcript of testimony, transcripts of certain affidavits, and of a motion for a new trial, and two envelopes containing exhibits. The motions are based on two grounds: First, that the documents and exhibits referred to have not been made a part of the bill of exceptions, and, second, that the appellant (defendant in the court below) failed to comply with a rule of the circuit court requiring service of a proposed bill of exceptions on the opposing party.
On August 22, 1956, there was filed in this court a document entitled “Defendant’s Bill of Exceptions.” On the same day there were filed here two volumes of testimony authenticated by the official reporter. On the cover of the bill of exceptions is stamped the receipt of the county clerk of Benton County reading: “Received the 7th day of August, 1956. Ralph P. Schindler, County Clerk by Huida Wrigglesworth, Deputy Clerk.” The bill of exceptions consists of a statement of 22 exceptions taken by the defendant to rulings of the court, some prior to trial, most of them upon the trial. It contains a single reference to the transcript of testimony. Exception No. 8, relating to testimony received over the appellant’s objections, recites: “This testimony and evidence is too extensive to be set forth here in detail, but is contained throughout the transcript of testimony.” The certificate of the judge reads: ‘ ‘ The foregoing Bill of Exceptions is allowed. Fred McHenry, Judge.” The date of allowance does not appear. Attached to the bill of exceptions [598]*598is a proof of service by mailing of “the foregoing Bill of Exceptions” on the district attorney for Benton County on August 7, 1956.
On August 22,1956, there was also filed in this court a document entitled “Short Transcript,” which, along with the matters required by ORS 137.190 and 138.180, contains copies of a number of affidavits in support of a motion for change of venue, of an affidavit in support of a motion for inspection of a transcript of a statement made to officers by the appellant, of two affidavits in support of a motion for a bill of particulars filed by the appellant, and of a motion for a new trial. In the body of the bill of exceptions it is recited that the affidavits referred to are ‘ ‘ set forth in the transcript filed herewith.” There is a similar recital as to the motion for a new trial.
There also came to this court the two envelopes of exhibits above referred to. With the exception of State’s Exhibit DD no mention of the exhibits is found in the bill of exceptions. Exception 17 sets forth the objection to the reception in evidence of this exhibit made on the trial by counsel for appellant.
It is a basic rule of our appellate procedure that it is only through the medium of a bill of exceptions that evidence in a law action can be brought into the record for consideration by this court. Tellkamp v. McIlvaine, 184 Or 474, 481, 199 P2d 246; State v. Pulver, 159 Or 296, 297, 79 P2d 990, and cases there .cited. This rule applies as well to affidavits in support of motions for a new trial, change of venue, continuance, and the like. Harper v. Wilson, 185 Or 23, 26, 200 P2d 600; State v. Garner, 166 Or 1, 5, 108 P2d 274; State v. De Grace, 144 Or 159, 165, 22 P2d 896, 90 ALR 232; State v. McPherson, 70 Or 371, 373, 141 P [599]*5991018; State v. Finch, 54 Or 482, 487, 103 P 505; State v. Kline, 50 Or 426, 430, 93 P 237. And, while 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” (ORS 19.100 (2)), these matters will not constitute a bill of exceptions, nor any part thereof, unless they are duly authenticated by the trial judge. ORS 19.100 (3). Boice v. Boice, 196 Or 346, 248 P2d 1069; Tellkamp v. McIlvaine, supra, 184 Or at p 479; Hall v. Pettibone, 182 Or 334, 339, 187 P2d 166; Wallowa Land Co. v. McGaffee, 160 Or 298, 84 P2d 1116; State v. Chee Gong, 17 Or 635, 21 P 882.
In this case the circuit judge has not by his certificate identified or made a part of the bill of exceptions either the two volumes constituting the transcript of testimony or the exhibits, with the possible exception of State’s Exhibit DD. Under well-settled rules these matters are not part of the record and are not open for this court’s consideration.
This is the first time in our experience and observation that an attempt has been made to incorporate affidavits in the bill of exceptions by including copies of them in the short transcript and referring to them in the bill of exceptions in the manner above stated. The affidavits should be set forth in the bill of exceptions itself. The statute says: “The rulings excepted to shall be stated, with as much evidence, or other matter, as is necessary to explain them, but no more.” ORS 19.100 (2). There is no authority for including affidavits such as we are here concerned with in the short transcript, though it may be that by a liberal interpretation of the statute governing bills of exceptions we could hold that this unorthodox procedure is effective to accomplish what seems to have been the purpose of counsel and [600]*600the court. But, for reasons to be presently stated, it is unnecessary to decide that question.
Counsel for the appellant have suggested to the court the propriety of sending the case back to the circuit court for correction of the circuit judge’s certificate. There is no doubt of this court’s power to take that course, or of the power of the circuit judge in a proper case to amend the certificate so that the bill of exceptions will conform to the facts. State ex rel. v. Ekwall, 135 Or 439, 443, 296 P 57, and cases there cited. In United Brokers Co. v. Southern Pacific Co., 86 Or 607, 616, 169 P 114, this court appears to have itself allowed an amendment of the certificate to the bill of exceptions. If the opinion in the case means what it says, then this court erroneously exercised an authority reserved exclusively to a judge of the circuit court. ORS 19.100 (3), (4).
The suggested procedure would avail the appellant nothing, however, unless the trial judge were able to find that a bill of exceptions, which included the matters here in question, was tendered by presenting it to the clerk of the circuit court within 60 days after the entry of the judgment or within an extension of that time properly granted, in accordance with the requirements of ORS 19.100, and that such a bill of exceptions was actually allowed, but that through inadvertence or mistake the certificate failed to conform to the facts. No showing has been made in this court pointing to the existence of such a state of facts.
Nevertheless, being reluctant, as we are, to make a ruling which would have the effect of depriving a party who has been convicted of second degree murder of what may be substantial rights in connection with his appeal, we should be disposed to adopt the sug[601]*601gested procedure were it not for what we have concluded, after mature deliberation, to be an insuperable obstacle in the way of the appellant. Rule 30 of the Circuit Court of the Twenty-First Judicial District, of which Benton County is a part, provides:
“A copy of the proposed bill of exceptions shall be served on the adverse party or Ms attorney and thereafter presented to the Clerk of the Court, who shall endorse thereon the date of its presentation to him, and the attorney shall thereafter deliver the same to the trial judge.”
As heretofore stated, a copy of the “proposed bill of exceptions ’ ’ was served by mail on the district attorney on August 7, 1956. TMs is the identical bill of exceptions which was filed with tMs court on August 22, 1956. It further appears from an affidavit of the official reporter that on April 30, 1956, he delivered a copy of the transcript of testimony to the district attorney. But there is no showmg that any of the affidavits, copies of which are included in the short transcript, were ever served on the district attorney, and no “proposed bill of exceptions,” of which the transcript of testimony, or the affidavits, or the exhibits, with the exception of State’s Exhibit DD, are a part, has ever been served on the district attorney, and no proposed bill of exceptions which includes these other matters, with the possible exception of the affidavits, has ever been presented to the clerk of the circuit court, so far as the record shows.
A rule of court, such as that quoted above, which does not contravene the provisions of the Constitution or of statute, has the effect of law and is as binding upon courts and litigants as are statutes. Hart v. State Ind. Acc. Comm., 148 Or 692, 701-702, 38 P2d 698. In the cited case we held that a rule of the Circuit [602]*602Court for Marion County identical with the rule of the Twenty-First Judicial District (save for a requirement, which conflicted with the statute, that the bill of exceptions be presented within ten days after the entry of judgment) was reasonable and valid, and that the action of the trial court in authenticating the transcript of testimony as a bill of exceptions, without prior service of a copy thereof upon opposing counsel, was void, and the transcript was expunged from the record. This decision was followed in Campbell v. City of Portland, 204 Or 654, 260 P2d 1094, 285 P2d 529, a case arising in Multnomah County and applying a rule of the Circuit Court for the Fourth Judicial District identical with Eule 30 of the Circuit Court for the Twenty-First Judicial District.
In Ptack v. Strong, 121 Or 688, 690, 257 P 19, it was suggested by Mr. Justice Eand, writing for the court, that it might be doubted “whether a court has the power to promulgate a rule so inflexible as to wholly deprive the court of the power to exercise a sound judicial discretion in a case where the failure to exercise such discretion may result in depriving a litigant of a legal right, which may be lost without any fault or neglect upon his part.” But the court found that the record in that case did not disclose such freedom from fault or neglect, and expunged a bill of exceptions which had been allowed by the trial court notwithstanding the failure of the litigant to comply with the rule. Here, likewise, there is nothing to suggest that the litigant was free from fault.
In those circumstances we are compelled to allow the motions of the respondent to the following extent: the transcript of testimony, the affidavits, and the exhibits, except State’s Exhibit DD, will be expunged from the record. The question of the motion for a new [603]*603trial is a matter of no importance as that motion is based entirely on alleged errors occurring on the trial. Even though it were incorporated in the bill of exceptions it would avail the appellant nothing, for the “denial of a motion for a new trial, based upon alleged error committed on the trial, of which errors the appellant had knowledge at the time, may not be assigned as error on appeal.” Sullivan v. Carpenter, 184 Or 485, 494, 199 P2d 655.
Let an order be entered in accordance with the foregoing opinion.