Strowbridge v. City of Chiloquin

280 P. 657, 277 P. 722, 130 Or. 444, 1929 Ore. LEXIS 216

• Court: Oregon Supreme Court
• Decided: July 30, 1929
• Status: Published

Opinions

COSHOW, C. J.

Plaintiffs confess the incompleteness of their transcript and tender with their opposition to the motion to strike a completed transcript. They also present sufficient justification for not having filed a complete transcript sooner. The case is one in equity and, therefore, the court could not try the case anew without all the evidence, and, of course, would have refused to do so on the record as it stood when the motion to strike was made. But the situation now is different and we do not think plaintiffs should be penalized for their inability to procure a complete transcript: Walker v. Fireman’s Fund Ins. Co., 122 Or. 179 (257 Pac. 701).

The brief filed by plaintiffs is subject to severe criticism. In page 16 of plaintiffs’ brief we find the following:

“Plaintiffs’ Recusation and Challenge against A. L. Leavitt, the trial judge, if sustained deprives the Decree of all Consideration in this Court. Three sets of affidavits and motions were brought in to circumvent the Trick or Sharp Practice of the defendants. An unverified answer and a willing judge who was then a candidate for reelection made the combination, and it was easy to secure a violation of the principle laid down by Judge Bean in Packwood v. State, 24 Or. 262 (33 Pac. 674).”

In page 17:

“The court can see from the stipulation of the defendants (pages 3, 4 and 5 Evidence) that there was no issue on the facts — it was all a question of law and the construction of the Charter — yet the ‘prejudiced’ court denies plaintiffs costs, and defendants force them to produce the proof of charter and ordinances of the city under a general denial.”

In page 20 of the brief is the following language:

“ * * when the Decree was written, the Court either carelessly or of premeditated prejudice, fixed the amount of the final levy at $24,914.64 — and we now challenge the defendant to harmonize the amount with the pleadings, vouchers or anything else.”

Plaintiffs close their brief as follows:

“The Demonstrable Mistake in Figures, and including the many Vouchers for Extras — make the alleged Decree a Travesty.”

Our statute prescribes the duties of attorneys to be, among other things, as follows:

“2. To maintain the respect due to the courts of justice and judicial officers; * *

“6. To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged.” Or. L., §'1082.

The brief is a very flagrant abuse of the duties of attorneys who are public officers as defined in our Code cited above. From a reading of the brief it seems that the attorney for plaintiffs is aggrieved because his motion to disqualify Judge Leavitt was denied by him. That motion was not presented, however, until after a motion and a demurrer had been presented and argued, and the case put at issue on the facts more than one day prior to the attempt to disqualify Judge Leavitt. Plaintiffs were not entitled to disqualify the judge under the circumstances: Gen. Laws 1925, Chap. 143. But even if the motion had been well taken plaintiffs would not be justified in filing in this court a slanderous brief reflecting upon the integrity and motives of the judge who sat in the case. Abuse is no argument; culmination is not convincing'; defamation is not determinative of an issue; perversion of speech is not persuasive. The language quoted from plaintiffs is very far from being respectful to the Circuit Court.

Defendants’ counsel suggest that unless the brief is stricken they should have the privilege of responding in the same kind, “Two wrongs never make a right.” Defendants should not follow the base example set by plaintiffs. We think the attorney for plaintiffs should file an apology in this court apologizing to Judge A. L. Leavitt and this court for using the disrespectful language quoted above from their brief. If he does not do so within twenty days from the date of this opinion, the brief will be stricken from the files of this court. The motion to strike the transcript from the files is denied. The motion to strike the brief is allowed unless plaintiffs comply with this opinion by filing in this court a proper apology within twenty days.

For appellants there was a brief over the name of Mr. M. 0. Wilkins. For respondents there was a brief over the names of Messrs. Manning, McColloch & Driscoll, Mr. Ralph W. Horan and Mr. Ralph M. Farmer.

Motion to Strike Transcript Denied. Motion to Strike Brief Allowed.

Brown, J., did not participate in this opinion.