Fields v. Fields

Decision Date21 February 1957
Citation307 P.2d 528,213 Or. 522
PartiesLeonard FIELDS, Respondent, v. Tracy L. FIELDS, Appellant.
CourtOregon Supreme Court

Dick & Dick, The Dalles, for the motion.

Charles A. Phipps, The Dalles, and Phillips & Sandeberg, Portland, contra.

BRAND, Justice.

The plaintiff brought an action for damages on account of personal injury suffered as a result of the alleged negligence of the defendant. The jury returned a verdict for plaintiff in the total amount of $38,227.47. Defendant appealed and the case is now before us upon a motion by the plaintiff to strike the bill of exceptions. We take it that a motion to strike, when filed in this court, means 'to strike' from a transcript which is on file here. The motion to strike the bill of exceptions was filed on 24 January 1957 but the bill of exceptions was not filed with the clerk of this court until 6 February 1957. The motion was therefore premature. However, since the plaintiff could immediately re-file his motion to strike, we will consider the merits of his motion as if it was filed after the filing of the bill of exceptions. The cause was tried in the circuit court for Sherman County. Judgment for the plaintiff upon the verdict of the jury was signed on 13 November 1956 and entered on 15 November 1956.

From the affidavit of an attorney for the defendant-appellant it appears that a proposed bill of exceptions was mailed to John Liveira, clerk of the circuit court at Canyon City which is in Grant County, 'with the request that he mark it submitted and then deliver it to the Honorable E. H. Howell, Circuit Judge for the Eleventh Judicial District;'. John Liveira, as clerk of the circuit court for Grant County (which is not the county in which the case was tried) certifies that he received the proposed bill of exceptions on 2 January 1957 'with a request that I mark it 'submitted' and deliver it to Judge E. H. Howell for his consideration.' He further certified 'That on the 2nd day of January, 1957, I did deliver to Judge Howell the said Bill of Exceptions at the Courthouse in Canyon City, Oregon, but I did not mark it 'submitted', for the reason that I am not the Clerk of Sherman County, Oregon.' The transcript of testimony certified by the court reporter was not physically attached to the short bill of exceptions but was certified, incorporated by reference and settled as a part of the bill by order of the trial judge signed on 15 January 1957. The bill bears the indorsement of the clerk of Sherman County, as follows:

'Bill of Exceptions tendered January 15, 1957

'Bill of Exceptions filed January 16, 1957

'Marie Hoskinson, County Clerk'.

The authenticated and settled but unattached transcript of testimony also bears the indorsement:

'Filed Jan. 16, 1957

'Marie Hoskinson

'County Clerk'.

To summarize, the relevant events in chronological order were as follows:

15 November 1956--Entry of judgment for the plaintiff.

2 January 1957--Proposed bill of exceptions received by the clerk of Grant County.

2 January 1957--Proposed bill delivered to Judge Howell.

14 January 1957--60th day after entry of judgment.

15 January 1957--Bill of exceptions settled by order of Judge Howell.

16 January 1957--Bill of exceptions filed with the clerk of Sherman County.

The statute provides:

'A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within 60 days after the entry of the judgment, or within such further time as may be granted by order of the court if application is made during the said period of 60 days or within any extension that may be granted.' ORS 19.100.

The clear legislative intent as expressed in the statute is that the clerk of the court to whom the proposed bill of exceptions may be 'presented' is the clerk of the court which tried the case. This case was tried in Sherman County and we find no authority for presenting the bill to the clerk of the circuit court for Grant County. Any other construction would mean that a bill could be tendered to the trial court by presenting it to any one of several county clerks, with the result that the records and files of the trial court would be incomplete. We conclude that the presentation of the bill to the clerk of the circuit court for Grant County did not constitute a tender thereof to the judge within the meaning of ORS 19.100. The tender to the clerk of the Sherman County circuit court was one day late, no extension of time having been requested or given. Rayburn v. Norton, 150 Or. 140, 36 P.2d 986, 43 P.2d 919. We have repeatedly held that a proposed bill of exceptions must be tendered within the time specified in ORS 19.100.

'It is clear from a reading of the provisions of section 2-703, as amended that it was the intention of the statute to limit the right to prepare and tender a proposed bill of exceptions to a period of sixty days after the entry of the judgment or within such further time as may be granted by the trial court, providing that the order granting such extension is made during the time when the right to file the bill exists and that an order made extending the time after the right to file the bill had ceased to exist would be unauthorized and void.' State ex rel. Luedinghaus Lumber Co. v. Stapleton, 193 Or. 402, 405, 10 P.2d 600, 601.

See also State v. Terwilliger, 141 Or. 372, 11 P.2d 552, 16 P.2d 651; Hart v. State Ind. Acc. Comm., 148 Or. 692, 38 P.2d 698; Bird v. Ellingsworth, 156 Or. 103, 59 P.2d 261, 65 P.2d 674; Williams v. Ragan, 174 Or. 328, 143 P.2d 209.

The opinion in State ex rel. Luedinghaus Lumber Co. v. Stapleton, supra, 139 Or. 402, 10 P.2d 600, was cited with apparent approval in State v. Terwilliger, supra. Insofar as those cases hold that the application for extension of time must be made during the period of 60 days or within any extension that may be granted, they are in harmony with the statute and correctly state the law. Insofar as they intimate that the order extending time as well as the application therefor must be made within 60 days or within any extension that may be granted, they were overruled by State ex rel. Kaser v. Leonard, 164 Or. 579, 94 P.2d 1113, 102 P.2d 197.

In Bird v. Ellingsworth, supra, the court said of Hart v. State Industrial Accident Commission, supra, 148 Or. 692, 38 P.2d 698, [156 Ore. 103, 59 P.2d 262]:

'* * * It was therein held that it was mandatory that the application and order for extension of time be made before the applicant is in default. * * *' (Italics ours.)

The Hart case did not so hold. See 148 Or. at page 700, 38 P.2d 698. If the Bird case be construed as holding that the order extending time must be made within the time specified, then it too must be deemed overruled insofar as it conflicts with the later ruling in State ex rel. Kaser v. Leonard, supra. The opinion in the Hart case was written by Justice Bailey who was also the author of State ex rel. Kaser v. Leonard. There is no conflict between the two.

From the foregoing it will be seen that if the exclusive procedure for tendering a bill of exceptions to the trial judge is by 'presenting it to the clerk of the court' within the time prescribed, then the bill of exceptions in this case must be stricken. It is suggested, however, that there remains from the recognized earlier procedure the right to tender a bill of exceptions direct to the trial judge. In this case the clerk of the Grant County circuit court at the request of appellant did deliver the bill to Judge Howell on 2 January 1957, long before the 60 days had expired.

Prior to 1929 the statutes imposed no limitation upon the time within which the circuit court could settle a bill of exceptions, the matter being within the court's discretion (State v. Terwilliger, supra), and the statute made no provision for tendering a bill of exceptions by 'presenting' it to the clerk of the court. Under the early practice there was no statute which would prevent the appellant from tendering the proposed bill directly to the trial judge without 'presenting' it to the clerk. The decisions indicate that the practice was to present or tender the bill directly to the trial judge. Hayes v. Clifford, 42 Or. 568, 72 P. 1, was a case in which the plaintiff brought mandamus against the trial judge to compel him to sign a bill of exceptions. The attorney for the appellant in the criminal case 'Presented said bill of exceptions to the defendant' (the judge), who refused to sign it. This court quoted from Ah Lep v. Gong Choy, 13 Or. 205, 9 P. 483, where it was said, 'The bill of exceptions should be tendered to the judge * * *.' It was held that there was no abuse of discretion by the trial court in refusing to settle the bill belatedly tendered, but no question was raised as to the propriety of tendering it direct to the judge.

Other cases decided before 1929 tend to indicate that the practice was to tender or present the proposed bill of exceptions to the judge. Washburn v. Interstate Investment Co., 1894, 26 Or. 436, 36 P. 533, 38 P. 620; Boothe v. Farmers' & Traders' Nat. Bank, 1909, 53 Or. 576, 98 P. 509, 101 P. 390; National Council of Knights & Ladies of Security v. McGinn, 1914, 70 Or. 457, 138 P. 493.

State ex rel. Luedinghaus Lumber Co. v. Stapleton, supra, a mandamus case, was decided under the statute as it now appears in ORS 19.100. See Oregon Laws 1931, ch. 49, p. 54. In that case the plaintiff 'before filing said transcript tendered it to defendant [the judge] and requested him to settle, sign, and certify to the same as a bill of exceptions.' Th...

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