Casto v. Murray

• Decision Date: 20 March 1904
• Citation: 47 Or. 57,81 P. 388
• Parties: CASTO v. MURRAY et al.
• Court: Oregon Supreme Court

81 P. 388

47 Or. 57

CASTO v. MURRAY et al.

Supreme Court of Oregon

March 20, 1904

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Action by Samuel Casto against Emma Murray and others. From a judgment for defendants, plaintiff appeals. On motion suggesting a diminution of the record. Denied.

John A. Carson and A.M. Cannon, for appellant.

W.T Slater, for respondents.

PER CURIAM.

This is a motion by respondents suggesting a diminution of the record, and to have this court supplement the same with the instructions to the jury of the trial court. The instructions have not been sent up, and are therefore not a part of the record here. The declared purpose of thus having the record completed is to have it shown that, although the trial court overruled a demurrer to the first separate answer to the amended complaint, it in effect disregarded such answer by its instructions to the jury, and thereby cured the error, if any, in its ruling upon the demurrer; it being now insisted by the appellant that the trial court erred in that particular. The instructions were given orally and taken down in shorthand, but the notes were not extended and filed with the clerk until later, when they were certified to by the circuit judge as being full and correct, and this court is now asked to annex them to the record here. There is a bill of exceptions accompanying the record, but whether it is desired to have the instructions added to it, or simply to have the record supplemented thereby, is not entirely clear. But in either view, we are of the opinion that the motion ought not to be allowed. If either party require it the charge of the court must be given in writing, and when so given it must also be filed with the clerk (B. & C. Comp. § 132, subd. 6), and, being so filed, it becomes a part of the record in the case. Oral instructions apparently were not designed to be thus incorporated in the record. It is the office of the bill of exceptions to embody a statement of the events and holdings of the court during the progress of the trial and in the submission of the cause to the jury, and it is only by this method that a record of the trial is made up. All matters not otherwise required by law to be made a part of the files and record in the case are required thus to be certified, or else the appellate court cannot take cognizance of them. Farrell v. Oregon Gold Co., 31 Or. 463 473, 49 P. 876, and ca...