Colgan v. Farmers' & Mechanics' Bank

• Decision Date: 18 January 1909
• Citation: 106 P. 1134,59 Or. 469
• Parties: COLGAN v. FARMERS' & MECHANICS' BANK.
• Court: Oregon Supreme Court

106 P. 1134

59 Or. 469

COLGAN v. FARMERS' & MECHANICS' BANK.

Supreme Court of Oregon

January 18, 1909

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by George H. Colgan against the Farmers' & Mechanics' Bank. On motion to dismiss defendant's appeal from an order denying a new trial. Motion denied.

Frank Holmes, for the motion.

Thomas O'Day and E.P. Morcom, opposed.

KING, J.

Plaintiff, by his counsel, moves to dismiss defendant's appeal from the order denying a new trial, and to strike from the files defendant's proposed bill of exceptions, containing Exhibit A. In support of the motion it is argued that the order denying a new trial is not "a final order affecting a substantial right," as used in section 547, c. 162, p. 313, of the Session Laws of 1907, and that the proposed bill of exceptions, Exhibit A, is an incumbrance of the record, in that the bill of exceptions, as allowed by the court, contains all the record, from which it appears no objections nor exceptions were taken. While the questions thus presented may be raised by motion, the points being new, involving the construction of an act which, in some respects, changes the rules of practice on appeal, it is of such vast importance to the trial courts, and bar generally, throughout the state, that we deem it best to defer action thereon until the cause may be presented on its merits, when we may receive the benefit of an oral discussion of the subject; and it is so ordered.