Hoffart v. Lindquist & Paget Mortg. Co.

• Decision Date: 10 February 1948
• Citation: 182 Or. 611,189 P.2d 592
• Parties: HOFFART <I>v.</I> LINDQUIST and PAGET MORTGAGE CO.
• Court: Oregon Supreme Court

182 Or. 611

189 P.2d 592

HOFFART

v. LINDQUIST and PAGET MORTGAGE CO.

Supreme Court of Oregon.

Argued January 7, 1948.

Affirmed February 10, 1948.

Appeal and Error — "May" — Discretionary

1. The word "may", in statute granting Supreme Court power to reverse judgment and award new trial as justice may require because of loss of reporter's shorthand notes or other matter necessary to prosecution of appeal, indicates that power granted is discretionary, and the discretion wide. O.C.L.A. § 10-811.

See Words and Phrases, Permanent Edition, for all other definitions of "May".

Appeal and Error — Report of Testimony — Authentication

2. Ordinarily, report of testimony must originate with official stenographer, if one is used, and his certificate is sufficient authentication of it for purpose of suits in equity, but it is competent for trial judge to authenticate the report of testimony, regardless of whether there is an official reporter. O.C.L.A. § 93-276.

Appeal and Error — Transcript of Notes

3. Statute requiring official reporter, on request of court or either party, to make transcript of his notes, certify it, and file it with clerk, does not preclude authentication by court of report of testimony otherwise prepared, where reporter is not used or where one has been used and his shorthand notes have been lost or destroyed. O.C.L.A. § 93-276.

Appeal and Error — Equity — New Trial — Lost Notes — Burden

4. Appellant, in equity suit seeking to avail itself of remedy given by statute granting power to Supreme Court to reverse judgment and award new trial because of loss of reporter's shorthand notes or exhibits, had burden of showing either that it had endeavored without success to prepare report of testimony and secure its authentication by trial court, or that nature of record was such that such effort would have been a futility, and also to make a prima facie showing of errors or unfairness in trial. O.C.L.A. § 10-811.

Appeal and Error — Equity — New Trial — Lost Notes

5. Supreme Court would not in exercise of its discretion reverse decree in equity suit and award new trial because of loss of reporter's shorthand notes and exhibits, where appellant gave no information as to evidence or any errors claimed to have been committed upon trial, or any facts indicating that decree was inequitable, and especially where more than two years had elapsed from entry of decree before case was ready to be put in issue in Supreme Court. O.C.L.A. § 10-811.

Appeal and Error — New Trial — Lost Notes — Supreme Court

6. The power to reverse judgment and award new trial because of loss, through no fault of appellant, of reporter's shorthand notes or of exhibits or other matter necessary to prosecution of appeal, is given exclusively to Supreme Court, and is not a remedy to be sought in trial court with right to review. O.C.L.A. § 10-811.

Statutes — Prospective

7. Legislation is usually construed as prospective.

Appeal and Error — Sufficiency of Pleadings

8. Where evidence was not before Supreme Court on appeal in equity suit, only question was whether pleadings were sufficient to uphold decree, and, upon their sufficiency not being questioned, decree would be affirmed.

                  See note 107 A.L.R. 603
                  39 Am. Jur. 50
                  5, C.J.S., Appeal and Error, 3174
                

Appeal from Circuit Court, Multnomah County.

LOUIS P. HEWITT, Judge.

Harry G. Hoy, of Portland, argued the cause for appellant. On the brief were Hoy & Prag, of Portland.

Jean L. Lewis, of Portland, argued the cause for respondent. With her on the brief was Wallace Smith, of Portland.

Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, BAILEY and HAY, Justices.

Suit by Peter Hoffart and another against Paget Mortgage Company, Hugh Lindquist, and Zoe Lindquist, to charge defendant Paget Mortgage Company as constructive trustee of certain monies alleged to have been received by it to be used in paying off certain incumbrances against real property owned by the plaintiffs but which such defendant wrongfully applied to other purposes. From a decree against defendant Paget Mortgage Company, such defendant alone appeals.

AFFIRMED.

LUSK, J.

We are concerned in this case with the construction and application of Ch. 192, Oregon Laws, 1947, an amendment of § 10-811, O.C.L.A., as amended by Ch. 123, Oregon Laws, 1945. The section, with the 1947 amendment in italics, now reads as follows:

"Upon an appeal, the appellate court may affirm, reverse or modify the judgment or decree appealed from, in the respect mentioned in the notice, and not otherwise, as to any or all of the parties joining in the appeal, and may include in such decision any or all of the parties not joining in the appeal, except a co-defendant of the appellant against whom a several judgment or decree might have been given in the court below; and may, if necessary and proper, order a new trial; provided, however, that upon an appeal from a judgment notwithstanding the verdict, the appellate court may consider the correctness of the ruling of the circuit court on a motion for a new trial when joined with a motion for judgment notwithstanding the verdict if such ruling is assigned as erroneous in the brief of any party affected by the appeal; and whenever it appears that such appeal can not be prosecuted by reason of the loss or destruction, through no fault of the appellant, of the reporter's shorthand notes, or of the exhibits, or other matter necessary to the prosecution of the appeal, the judgment or decree appealed from may be reversed and a new trial ordered as justice may require."

Respondents, who were plaintiffs in the court below, brought a suit in equity against the appellant Paget Mortgage Company and others in which it was sought to charge the appellant as constructive trustee of certain moneys alleged to have been received by it to be used in paying off certain encumbrances against real property owned by the respondents, but which appellant wrongfully applied to other purposes. After a trial the court rendered a decree against appellant on April 17, 1945, for the sum of $1,565.96. Subsequently the shorthand notes of the reporter who reported the trial, as well as the exhibits introduced in evidence, were lost. Notice of appeal was filed and served on June 12, 1945, and thereafter numerous orders enlarging the time within which to file the transcript on appeal were made in response to applications supported by affidavits of counsel for the appellant, which showed that the court reporter's notes and the exhibits were lost and that the appellant was seeking legislative relief which could not be obtained until the 1947 meeting of the legislature and until a measure which the appellant was seeking to have enacted into law should be enacted and become effective. The first of these orders was entered July 16, 1945. The last, entered on June 24, 1947, after Ch. 192, Oregon Laws, 1947, had been enacted but before it became effective, enlarged the time for filing the transcript to the fifteenth day of August, 1947.

On this record, together with the pleadings, preliminary rulings on the pleadings and the opinion of the trial judge stating the reasons for his decision in favor of the respondents, the appellant asserts that it is entitled, under the provisions of the 1947 amendment above set out, to an order of this court reversing the decree and granting a new trial. That claim presents the only question for decision.

There are numerous cases from other jurisdictions in which the like question has arisen, either under statutes similar to ours (except that they vest the power in the trial court) or under a claim of inherent power in the court to grant a new trial when a party is prevented from prosecuting an appeal through loss of the evidence. See the following cases and annotations: Moore v. Oklahoma, 59 Okla. Crim. Rep. 372, 61 P. (2d) 1134, 107 A.L.R. 598, with annotation at p. 603; Shute v. Big Meadows Investment Co., 45 Nev. 99, 198 P. 227, 16 A.L.R. 1155, with annotation at p. 1158; State v. Ricks, 32 Idaho 232, 180 P. 257, 13 A.L.R. 99, with annotation at p. 102. An examination of the cases will show that where the power exists, either by virtue of statute or otherwise, it is almost uniformly held that it will be exercised only where the party invoking it has shown that he has made diligent effort to supply the lost record and that such effort was unavailing. See cases at 107 A.L.R. 604; 16 A.L.R. 1158; 13 A.L.R. 104; and Fickett v. Rauch, (Cal. App.) 177 P. (2d) 661, 667, construing § 953e, Civil Code of California, which confers the power in question on the trial courts of that state.

1. It is not enough, to enable a party to secure the benefit of this statute, that he merely show, as has been done here, that the exhibits and stenographic notes have been lost or destroyed through no fault of the appellant. If that had been the intention of the legislature we may suppose that it would have provided that in every such case a new trial must be awarded. Instead, the legislature said that "the judgment or decree appealed from may be reversed and a new trial ordered as justice may require." The power granted is discretionary and the discretion wide. See Fickett v. Rauch, supra, and cases there cited.

2, 3. While ordinarily "the report of the testimony must originate with the official stenographer, if one is used, and his certificate is sufficient authentication of it for the purposes of suits in equity" (Nealan v. Ring, 98 Or. 490, 496, 184 P. 275, 193 P. 199, 193 P. 747), yet, as stated in that case, "it is, of course, competent for the trial judge to authenticate a report of the testimony, whether there is an official reporter or not." Section 93-276, O.C.L.A., requires the official reporter, on request of the court or either party to make a transcript of his notes, certify it, and file it with the clerk. But there is nothing in this, or in any other, statutory provision, so far as we are...