Kapischka v. Tillamook Hotel Co.

• Decision Date: 04 December 1917
• Citation: 168 P. 938,86 Or. 498
• Parties: KAPISCHKA v. TILLAMOOK HOTEL CO.
• Court: Oregon Supreme Court

168 P. 938

86 Or. 498

KAPISCHKA v. TILLAMOOK HOTEL CO.

Supreme Court of Oregon

December 4, 1917

Department 1.

Appeal from Circuit Court, Tillamook County; H. H. Belt, Judge.

Action by Mrs. S.W. Kapischka against the Tillamook Hotel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action first tried in a justice's court to recover $28.50 for services rendered the defendant at its request. The cause was tried in the circuit court without the intervention of a jury. Findings of fact were made, and a judgment rendered thereon in favor of plaintiff, and defendant appeals.

Ralph R. Duniway, of Portland, and E. J. Claussen, of Tillamook for appellant. Webster Holmes, of Tillamook, for respondent.

BEAN J.

Defendant assigns that the court erred in finding from the stipulation made by the parties as evidence that the services were rendered for the defendant. It is contended by counsel for the company that the stipulation shows that during July, 1914, the services mentioned were performed for the acting receiver of the defendant corporation whose appointment it was resisting in the courts, and that the receiver was discharged August 2, 1914. A portion of the stipulation is recited in the findings of fact made by the trial court. It appears that it was agreed that the court should take notice of the record in the case of Henderson v. Tillamook Hotel Co., 78 Or. 444, 153 P. 481, which was tried in the same circuit court in the first instance and with which the trial court was no doubt familiar. We do not find that the record in the Henderson Case was made a part of the record in the present case upon the appeal. Neither does it appear to have been on file in this case in the circuit court. There is no bill of exceptions in this case.

Section 172, L. O. L., provides:

"The statement of the exception, when settled and allowed, shall be signed by the judge and filed with the clerk, and thereafter it shall be deemed and taken to be a part of the record of the cause. 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."

In the first note to section 169, L. O. L., it is stated:

"The object of the bill of exceptions under the Code, as at common law, is to bring into the record matter that would not otherwise appear, in order to lay the foundation for proceedings in error and for the information of the appellate court. State v. Drake, 11 Or. 396, 4 P. 1204; State v. McGinnis, 17 Or. 333, 20 P. 632; State v. Chee Gong, 17 Or. 635, 21 P. 882; State v Cody, 18 Or. 535, 23 P. 891 ; Nelson v United States (C. C.) 30 F. 113."

In Grice v. O. W. R. & N. Co., 78 Or. 24, 150 P. 862, 152 P. 509, there was a stipulation as to a portion of the facts, but nevertheless it was brought into the record by an authenticated bill of exceptions.

In the case at bar the court found facts in addition to those in the part of the stipulation recited in the findings. In order for this court to determine whether or not there was any evidence to support such findings, it is necessary that the bill of exceptions present all the evidence upon the facts found, or that all the evidence be disclosed thereby. In the record of the Henderson Case there may have been various agreements and arrangements relative to the care and management of the hotel while those proceedings were being contested. There is no certificate...