Carney v. Duniway

• Decision Date: 11 August 1899
• Citation: 58 P. 105,35 Or. 131
• Parties: CARNEY v. DUNIWAY et al.
• Court: Oregon Supreme Court

58 P. 105

35 Or. 131

CARNEY v. DUNIWAY et al.

Supreme Court of Oregon

August 11, 1899

On petition for rehearing. Denied.

For former opinion, see 57 P. 192.

BEAN, J.

On petition for rehearing. In Bennett v. Express Co., 12 Or. 49, 6 P. 160, the entire evidence was brought up, and the ruling, as indicated by the headnote, was that where a defendant, after his motion for a nonsuit has been overruled, goes into his defense, and supplies the defect in plaintiff's evidence, an appellate court will not review the ruling upon the motion; but it was not held that the mere fact that the defendant gave evidence in his own behalf after the motion was overruled operated as a waiver of the motion. In the case at bar the bill of exceptions does not purport to contain any of the evidence on behalf of the defendant, nor, indeed, does it show that any such evidence was given, and hence there is no room for an application of the doctrine of the Bennett Case. In Atterberry v. Railway Co., 18 Or. 85, 22 P. 527, the bill of exceptions did not affirmatively show that the evidence material and necessary to the consideration of the ruling on the motion for nonsuit was contained in the record, and, in accordance with the uniform rulings of this court, the judgment was affirmed on that account. In Coffin v. Hutchinson, 22 Or. 554, 30 P. 424, the holding was that the ruling of the court below denying a motion for a nonsuit will not be considered on appeal unless the bill of exceptions shows affirmatively that it contains all the evidence given on behalf of the plaintiff. And the same is true of Schaefer v. Stein, 29 Or. 147, 45 P. 301. In neither of the cases referred to was the question material as to whether, in case the defendant's motion for a nonsuit is overruled, and he subsequently gives evidence in his own behalf, he thereby necessarily waives his motion, or as to whether, in case he appeals from the ruling on such motion, he must bring up all the testimony given on the trial. These questions were considered and passed on for the first time in the case at bar, and we do not understand that the conclusion reached conflicts in any way with the prior rulings and decisions of this court. The petition must therefore be denied, and it is so ordered.