Johnson v. Ladd

• Decision Date: 14 September 1932
• Parties: JOHNSON v. LADD.
• Court: Oregon Supreme Court

14 P.2d 280

144 Or. 268

JOHNSON v. LADD.

Supreme Court of Oregon

September 14, 1932

En Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Anna Johnson against Thornton Ladd. From the judgment defendant appeals. On motion to remand bill of exceptions.

Motion denied.

See also, 138 Or. 371, 5 P.2d 1062.

Lord & Moulton, of Portland, for the motion.

Senn &amp Recken, of Portland, opposed.

BEAN C.J.

The respondent moves the court to remand the bill of exceptions on file to the circuit court "with directions to certify to this court whether Exception No. 4 and Exception No. 5 were taken by defendant and appellant at the time of the trial in the above entitled cause, and to certify whether the record appearing upon pages 134-135 of the transcript of evidence attached to the Bill of Exceptions herein marked 'Exhibit A' is the true and correct record of the exceptions taken by defendant and appellant in the trial court, or whether the record of exceptions purported to be shown by said Exceptions No. 4 and 5 is a true and correct record." The trial judge has already made a certificate pertaining to the matter.

The motion is based upon the affidavit of attorney for respondent to the effect that the transcript of the official reporter is true and correct according to his memory and knowledge of the cause, that subsequent to the trial of the cause the bill of exceptions and Exhibit A were served upon counsel for respondent, and that at the time of service he was very busy with other trials, and had no time to carefully check the bill of exceptions to see whether the same correctly reported the proceedings in said cause, and so informed counsel for appellant, and was advised by counsel for respondent that the bill of exceptions conformed to the record and no exceptions were included therein other than those taken at the trial; therefore no objections were made or filed to the bill of exceptions, and the trial judge was so informed by counsel for respondent.

It is shown in the motion and in the transcript of testimony on page 135 that at the close of the instructions given by the court the court inquired of counsel: "Is there any matter the court has overlooked?" whereupon counsel for appellant stated: "We are satisfied with the instructions except the withdrawal from the jury of the first, second and third separate answers and defenses, and, of course, the refusal of the court to give any of our requested instructions."

In the bill of exceptions, there are contained two exceptions to the instructions of the court, Nos. 4 and 5. Therefore there appears to be a conflict between the bill of exceptions as settled and allowed by the judge and the transcript of the official reporter.

Objections to the form and structure of the bill of exceptions should be addressed to the trial judge, whose duty it is to settle the terms of the bill. Redsecker v. Wade, 69 Or. 153, 134 P. 5, 138 P. 485, Ann. Cas. 1916A, 269.

A statement of the testimony as set forth in the bill of exceptions, certified to by the trial judge, is binding on the Supreme Court as against a transcript of the same testimony by the official stenographer. Latourette v. Miller, 67 Or. 141, 147, 135 P. 327. See, also, Hoskins v. Scott, 52 Or. 271, 96 P. 1112; Weinstein v. Wheeler, 127 Or. 406, 257 P. 20, 271 P. 733, 62 A. L. R. 574. The same rule must be applied to the...