Ausplund v. Higgins

• Decision Date: 28 August 1905
• Parties: AUSPLUND v. HIGGINS et al.
• Court: Oregon Supreme Court

82 P. 12

47 Or. 10

AUSPLUND v. HIGGINS et al.

Supreme Court of Oregon

August 28, 1905

On rehearing. Denied.

For former report, see 81 P. 577.

MOORE, J.

A petition for a rehearing having been filed, defendant's counsel insist that a statement, in the opinion announced in this case, that the bill of exceptions did not purport to contain all the testimony given at the trial, prior to the interposition of a motion for a judgment of nonsuit, is not borne out by the record. A re-examination of the transcript shows that the opinion inadvertently refers to the motion for a nonsuit, when it should have specified a motion for findings and a judgment in defendant's favor. The bill of exceptions sets out certain exhibits, introduced in evidence by defendant, and then contains the following recital: "That this was all the testimony offered by the plaintiff to sustain the allegations of her complaint and of the pleadings, and thereupon the AEtna Indemnity Company, acting by its counsel, moved the court for an order of nonsuit as follows [stating the reasons therefor]. The motion for a nonsuit is denied. Defendant allowed an exception. That at the close of the case, no more testimony having been introduced on behalf of plaintiff, the defendant moved for findings and judgment in favor of defendant the AEtna Indemnity Company as follows [giving the grounds relied upon]. The motion is overruled. Defendant excepts. The foregoing bill of exceptions is hereby settled and allowed. [ Signed] Arthur L. Frazer, Judge." The statement in the bill of exceptions, after the order overruling the motion for a nonsuit, "that at the close of the case, no more testimony having been introduced on behalf of plaintiff," etc., does not negative the fact that the defendant may have introduced testimony upon which the findings are based.

We adhere to the assumption announced in the former opinion, which is corrected only in respect to the particular motion intended, and a rehearing is denied.