First Nat. Bank of Payette, Idaho v. Miller

• Decision Date: 11 December 1906
• Citation: 48 Or. 587,87 P. 892
• Parties: FIRST NAT. BANK OF PAYETTE, IDAHO, v. MILLER.
• Court: Oregon Supreme Court

87 P. 892

48 Or. 587

FIRST NAT. BANK OF PAYETTE, IDAHO, v. MILLER.

Supreme Court of Oregon

December 11, 1906

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Action by the First National Bank of Payette, Idaho, against William Miller. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action by the First National Bank of Payette, Idaho, a corporation, against William Miller, to recover money. The facts are that the defendant, who is an attorney at law commenced an action in the circuit court of Malheur county for one Henry Helmick against one O.W. Porter, and on April 11, 1903, recovered therein the sum of $2,930.22, including costs and disbursements. Sixteen days thereafter Helmick assigned the judgment to the plaintiff herein by an instrument appointing such corporation his irrevocable attorney with power of substitution, which transfer was immediately filed with the clerk of such court, and Miller notified thereof. Miller on June 29, 1903, collected the judgment, retained the sum of $200 as his fees, and paid the remainder to the Moss Mercantile Company, Limited, pursuant to Helmick's direction, and conformable to a previous writing of which the following is a copy: "Payette Idaho, October 30, 1900. Mr. O.W. Porter, you are hereby authorized and directed to pay over to Moss Mercantile Company, Limited, all moneys which you are now owing me [Signed] Henry Helmick." This action was thereupon commenced, the complaint stating that Miller, as the attorney of the plaintiff herein, received to its use the sum of $2,730.22, which, upon a demand therefor by it, he refused to pay, and praying for the recovery thereof with interest. Thereafter the Moss Mercantile Company commenced a suit against the bank to enjoin the maintenance of this action and such proceedings were had that the suit was dismissed. Moss Mercantile Co. v. First National Bank, 47 Or. 361, 82 P. 8, 2 L.R.A. (N.S.) 657. The answer herein denies the material allegations of the complaint, and avers that Miller paid out the money believing that the assignment of the judgment to the plaintiff herein was in the interest of the Moss Mercantile Company, to discharge the order hereinbefore mentioned. It is further alleged that the plaintiff herein took an assignment of the judgment without any consideration therefor, agreeing to collect the sum so awarded as Helmick's agent, without compensation for its service. The allegations of new matter in the answer were denied in the reply, and the cause having been tried, judgment was rendered as prayed for in the complaint, from which Miller appeals.

J.H. Richards and O.O. Haga, for appellant.

Will R. King, for respondent.

MOORE J. (after stating the facts).

At the threshold we are confronted with a motion to affirm the judgment, on the ground that the errors relied on for a reversal are not specified with sufficient certainty, and that the bill of exceptions violates the provisions of the statute (B. & C. Comp. § 171), by including therein matters not necessary to an explanation of the alleged assignments of error. This cause having been tried at Pendleton, the appellant was required to serve a brief containing a concise statement of the errors on which he relied. Subd. b, rule 32 of the Supreme Court (35 Or. 605). The assignments stated in Miller's brief are to the effect that the court erred in not permitting a certain witness to be cross-examined on matters within the issues, respecting which he had testified on his direct examination, setting out the questions asked. Seven other assignments in relation to the rejection of testimony and evidence are also noted in a similar manner. It is further stated in the brief mentioned that the court erred in giving certain instructions, setting out the exact language complained of, consisting of six paragraphs grouped under one heading of assignment, occupying two pages of the brief, and forming only a small part of the charge given. Four pages of the bill of exceptions are devoted to a history of the case of Helmick v. Porter; 22 to the rejection of testimony and evidence, and the remaining 23 to the court's statement of the issues involved, and the instructions deemed applicable thereto.

Reasonable latitude must be granted to counsel for the appellant in the statement of exceptions and in the preparation of a bill thereof, and because counsel, for the adverse party or an appellate court, might possibly condense the matters thus expressed, affords no valid reason for dismissing an appeal, where, as in the case at bar, there has been a substantial compliance with the provisions of the statute and of the rules of this court. Where the assignment states that the court erred in giving, over objection and exception, certain instructions, setting them out in distinct paragraphs, containing only a very small part of the entire charge, and not indicating the language complained of under separate assignments, to hold that if either of the parts of the charge, so generally expressed, correctly stated the law applicable to the case, the entire assignment would be unavailing, would, in our opinion, be too technical. The motion to affirm the judgment will, therefore, be denied.

Considering the case on its merits, the bill of exceptions shows that one of the counsel for the plaintiff herein, having been called as Miller's witness, testified that Exhibit E, introduced in evidence in the case of Moss Mercantile Co. v. First National Bank, 47 Or. 361, 82 P. 8, 2 L.R.A. (N.S.) 657 and published at page 32 in the brief of the defendant therein, was a correct copy of the original, which had been sent with the transcript of that cause on appeal to this court. Miller's coun...