Ferrari v. Beaver Hill Coal Co.

• Decision Date: 08 June 1909
• Citation: 54 Or. 210,102 P. 175
• Parties: FERRARI v. BEAVER HILL COAL CO. et al.
• Court: Oregon Supreme Court

102 P. 175

54 Or. 210

FERRARI v. BEAVER HILL COAL CO. et al.

Supreme Court of Oregon

June 8, 1909

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Action by James Ferrari, a minor, by Rosa Ferrari, guardian, against the Beaver Hill Coal Company and another. From a judgment for plaintiff, defendant, the Beaver Hill Coal Company, appeals. Motion to strike out amended bill of exceptions denied.

See, also, 95 P. 498.

A.J. Sherwood, R.W. Wilbur, and John D. Goss, for appellant.

J.M. Blake, for respondent.

PER CURIAM.

This is a motion to strike from the files an amended bill of exceptions. After the cause was argued and submitted, but before an opinion had been written, or a decision rendered herein, the trial court, upon application therefor, and notice thereof to the adverse party, made at a subsequent term a nunc pro tunc order, changing in some particulars an instruction set out in the original bill of exceptions, so as to make the alteration correspond with that part of the charge as it was given to the jury. The right of a trial court to make such an alteration, though denied in some other states, is settled in Oregon ( State ex rel. v. Estes, 34 Or. 196, 204, 51 P. 77, 52 P. 571, 55 P. 25; Bloch v. Sammons, 37 Or. 600, 55 P. 438, 62 P. 290), provided the amendment is duly made, properly certified, and filed in this court before a decision on the merits has been rendered in the cause ( State v. Jennings, 48 Or. 483, 493, 87 P. 524, 89 P. 421).

The amended bill of exceptions having been prepared, authenticated, and sent up according to the manner, and within the time indicated, the motion is denied.