Hooton v. Jarman Chevrolet Co. Inc.

• Decision Date: 02 December 1930
• Citation: 135 Or. 269,293 P. 604
• Parties: HOOTON v. JARMAN CHEVROLET CO. INC., ET AL.
• Court: Oregon Supreme Court

293 P. 604

135 Or. 269

HOOTON v. JARMAN CHEVROLET CO. INC., ET AL.

Supreme Court of Oregon

December 2, 1930

In Banc.

Appeal from Circuit Court, Coos County; J. T. Brand, Judge.

Action by M. O. Hooton against the Jarman Chevrolet Company, Inc. and another. Judgment for plaintiff, and defendants appeal. Motion to dismiss appeal.

Motion denied.

Leroy Lomax, of Portland, for the motion.

Goss Murphy & Skipworth, of Marshfield, opposed.

BROWN, J.

Based "upon the record of this cause and wherein it appears that the judgment was entered in the lower court on October 22, 1929, and that no bill of exceptions was tendered to the lower court until on October 17, 1930, and after the argument of this cause before this court," the plaintiff has filed a motion to expunge the bill of exceptions, dismiss the appeal, and affirm the judgment appealed from. As set out in the motion, the record discloses that the judgment order herein was entered on October 22, 1929; that no bill of exceptions was tendered until October 17, 1930, and no extension of time was ever granted for filing the same.

In so far as it pertains to the question presented by this motion section 2--703, Oregon Code, 1930, provides: "A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within sixty (60) days after the entry of the judgment or decree, or within such further time as may be granted by order of the court."

This law must be so administered, however, as to harmonize with and come within the compass of, Oregon Constitution, art. 1 § 10, which announces that "justice shall be administered * * * completely and without delay." Clearly, the trial court abused its discretion in settling and allowing the bill of exceptions nearly a year after the entry of judgment. It came too late, and should be expunged from the record. But, as written by our court, speaking through Mr. Justice Rand in Student v. Goldapp, 124 Or. 102, 259 P. 207, 208: "This, however, will not result as in the Ptack Case [121 Or. 688, 257 P. 19], in the dismissal of the appeal, for with the bill of exceptions expunged the appellant under the record here, may still try out the question of the sufficiency of the pleadings, the correctness of the court's rulings in denying the motion for change of venue and in denying the motion for a new trial and possibly other questions."

This doctrine is well settled in this jurisdiction, and is based upon statute and court decisions. In the early case of Bridal Veil Lumbering Co. v. Johnson, 25 Or. 105, 34 P. 1026, 1027, the question of the necessity for an exception arose, and Mrs. Justice Moore, speaking for the court, said: "No exceptions are required to be taken or allowed to any decision upon a matter of law, when it is entered in the journal, or made wholly upon matters in writing and on file in the court (Hill's Code, § 233)."

This decision is recognized and followed in Chung v. Stephenson, 50 Or. 244, 89 P. 386, 805, 806, where Mr. Justice Eakin, in delivering the opinion of the court, said: "We understand that exceptions are only necessary to be taken to save and bring up errors transpiring upon the trial that cannot be preserved in the record without a bill of exceptions. This error appears from the record, viz., the pleadings and the findings, and does not depend upon the bill of exceptions to disclose it."

In Pullen v. Eugene, 77 Or. 320, 146 P. 822, 824, 147 P. 768, 1191, 151 P. 474, Ann. Cas. 1917D, 933, in passing upon the question of the necessity of presenting error of the trial court by bill of exceptions, the court declared: "Nor was it necessary, when the demurrer was sustained, to save an exception to the court's ruling, since it was made upon a matter in writing and on file in the court. L. O. L. § 172."

In the case of Chrudinsky v. Evans, 85 Or. 548, 167 P. 562, 563, the opinion of the court was delivered by Mr. Justice Burnett. Among other things, the learned justice said:

"The principle error relied upon by the appealing defendant is the entry of a separate judgment on the several verdicts. For one thing, in opposition to this, the plaintiff contends that the defendant cannot be heard here on that point, because there is nothing about it in the bill of exceptions. We read, however, in section 172, L. O. L.:

" 'No exception need be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly upon matters in writing and on file in the court.'

"An exception is an objection, and a bill of exceptions is necessary only where the matter to which it applies does not otherwise appear of record. Here, however, the decision complained of was made upon these written verdicts which were filed, and was embodied in an entry upon the journal of the court. Hence there was no need of duplicating the history of the transaction impugned."

The question was again presented in Annand v. Austin, 86 Or. 403, 167 P. 1017, 168 P. 725, 726, and the court, in its opinion on rehearing, wrote: "The plaintiff raised the question appropriately by her motion to substitute other findings, and as the decision on that point was made upon matters in writing and on file, it is not necessary that specification of the error should appear in the bill of exceptions. L. O. L. § 172."

In School District No. 30 v. Alameda Construction Co., 87 Or 132, 169 P. 507, 510, 788, the court, in passing upon the question, held: "The error is apparent on the face of the record itself so that no bill of exceptions is...