Backhaus v. Buells

• Decision Date: 06 July 1903
• Citation: 72 P. 976,43 Or. 558
• Parties: BACKHAUS v. BUELLS et al.
• Court: Oregon Supreme Court

72 P. 976

43 Or. 558

BACKHAUS v. BUELLS et al.

Supreme Court of Oregon

July 6, 1903

Appeal from Circuit Court, Marion county.

Action by A.F. Backhaus against F.W. Buells & Co. From the judgment plaintiff appeals. Motion to dismiss. Motion overruled.

Geo. G. Bingham, for the motion.

Carey F. Martin, opposed.

WOLVERTON J.

This is a motion to dismiss the appeal herein, because certain exhibits, designated B, C, D, E and F, which are attached to and made a part of defendants' third and separate defense, are not contained either in the abstract or any transcript filed in this court. The purpose of the defense referred to was to set up a former adjudication, and these exhibits are copies of the complaint, answer, reply, motion for judgment, and judgment, in the first action. There was a motion interposed by defendants in the present cause for judgment on the pleadings, which was overruled by the trial court. In this ruling defendants insist that the court erred and it is argued that because the exhibits referred to are omitted from the abstract they are unable to present the question here. It is manifest that if the motion for judgment was well taken the cause should have been finally concluded in defendants' favor, unless, through a proper exercise of the discretion of the trial court, some amendment was allowed by which to remedy the defect, and that without the missing record the defendants' assignment of error on the appeal cannot avail them on the trial of the cause here. The respondents are doubtless entitled to have this additional record here, and the question presented is who of the parties litigant should bring it up.

The respondents rely upon section 554, B. & C. Comp., to sustain their position, which reads: "When it appears by affidavit to the satisfaction of the court that the transcript is incomplete in any particular substantially affecting the merits of the judgment or decree appealed from on motion of the respondent the court shall make a rule upon the clerk of the court below, requiring him to certify as to such alleged omission, and if true, to transmit to the appellate court a certified copy of the pleading entry, order, or other paper omitted in the transcript; or in such case, the respondent may move to dismiss the appeal, and the court shall allow such motion unless, on the cross motion of the appellant, it makes a rule upon the clerk concerning such omission, as provided in this section, upon such terms as may be just." The appellant insists that he has complied with the statute in bringing up so much of the record as will present the errors upon which he relies for a reversal of the judgment, and refers to section 553, B. & C. Comp., to sustain his position. This section reads: "Upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligently present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and the undertaking on appeal." It would seem that appellant has brought himself clearly within the purview of this latter section, as he has filed here an abstract of the record, sufficient to present the errors relied upon by him for reversal of the judgment, together with a copy of the judgment appealed from, the notice of appeal, and the undertaking, with proof of service of such notice and undertaking. The rules of the court concerning the abstract require that the appellant shall serve upon an attorney for each respondent a printed copy of so much of the record prepared as therein provided as may be necessary to a full understanding of...