John Deere Plow Co., of Moline v. Silver Mfg. Co.

• Decision Date: 17 July 1923
• Citation: 216 P. 743,118 Or. 62
• Parties: JOHN DEERE PLOW CO., OF MOLINE, v. SILVER MFG. CO.
• Court: Oregon Supreme Court

216 P. 743

118 Or. 62

JOHN DEERE PLOW CO., OF MOLINE, v. SILVER MFG. CO.

Supreme Court of Oregon

July 17, 1923

In Banc.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by the John Deere Plow Company, of Moline, against the Silver Manufacturing Company. Judgment for plaintiff, and defendant appeals. On motion to strike bill of exceptions. Motion denied.

On the 9th day of February, 1923, final judgment was entered in the above-entitled court and cause against the defendant, the appellant here. On the 18th day of May, 1923, the appellant tendered to the circuit court a proposed bill of exceptions. The respondent appeared and objected to the signing of any bill of exceptions, and the circuit court made the following order:

"The court has given consideration to the authorities cited in the argument on objections to the signing of bill of exceptions, and is of the opinion that the same should be signed. Mr. Justice Bean, in McElvain v. Bradshaw, 30 Or. 569, 48 P. 424, laid down the rule as follows 'But whether the bill shall be settled and allowed after the time limited is a matter within the sound judicial discretion of the trial judge.' And in the case of West v. McDonald, 74 Or. at page 424, 144 P. 655, the Supreme Court states that: 'When the trial judge sees fit to settle the bill of exceptions even after the time limited this court will not disregard it. The bill in this case was so settled by the judge, and will be considered for the purpose of this appeal.'

"Counsel for the Silver Manufacturing Company gave his excuse for not having complied with the rule, and the court is of the opinion the excuse is valid and sufficient to authorize the court in exercising its discretion herein. The bill will be signed and dated as of May 24th."

The respondent moves to strike the bill of exceptions from the files on the ground that it does not comply with certain rules of the circuit court for Multnomah county, which are as follows:

"Bills of Exceptions.

"Rule 49. Any party to a civil or criminal action may within thirty days after the entry of final judgment, tender a bill of exceptions.

"Rule 50. It shall not be necessary to enter an order in the Journal granting time to file a bill of exceptions unless the court, by special order, extends or shortens the time within which to file it.

"Rule 51. A copy of the proposed bill of exceptions shall be served, as copies of all papers filed in the case are required to be served by Rule 27.

"Rule 52. The adverse party must, within ten days after the service of a bill of exceptions, if the same is unsatisfactory, file a statement of objections thereto.

"Rule 53. The court, upon being satisfied that the adverse party or his attorney has had due notice thereof, may, on application of either party, grant an extension of...