Fisher v. Kelly

• Citation: 26 Or. 249,38 P. 67
• Parties: FISHER et al. v. KELLY.
• Decision Date: 29 October 1894
• Court: Oregon Supreme Court

38 P. 67

26 Or. 249

FISHER et al. v. KELLY.

Supreme Court of Oregon

October 29, 1894

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by M. Fisher Sons & Co. against Penumbra Kelly to recover possession of mortgaged chattels. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

A.C. Emmons, for appellants.

Joseph Teal, for respondent.

PER CURIAM.

Motion to dismiss the appeal. Held:

1. That documentary evidence offered and admitted on the trial of an action at law cannot be made a part of the record on appeal in this court by copies certified to by the clerk of the trial court, but only by a bill of exceptions.

2. That in an action by a chattel mortgagee against an attaching creditor to remove possession of the mortgaged property, the defense being that the mortgage is void, because made to hinder, delay, and defraud creditors, the ruling of the trial court in granting a nonsuit cannot be reviewed on appeal without the mortgage offered and admitted in evidence, or a copy thereof, is made a part of the record, because it may have been void, as a matter of law, on its face.

3. That, while this court will not ordinarily dismiss an appeal for want of or because a bill of exceptions is defective, yet, where the only assignment of error is the ruling of the trial court in granting a nonsuit, and it is conceded, at the hearing of the motion, that, unless the certified copies of the documentary evidence can be considered and deemed a part of the record, independent of the bill of exceptions, the appellant has no case, the motion to dismiss the appeal will therefore be treated as a motion to affirm the judgment, and an order of affirmance entered accordingly.