Keady v. United Rys. Co.
| Decision Date | 26 April 1910 |
| Parties | KEADY v. UNITED RYS. CO. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Thomas O'Day Judge.
Action by L.Y. Keady against the United Railways Company. Judgment for plaintiff and defendant appeals. Affirmed.
See also, 100 P. 658.
This is an action to recover money upon a contract. The complaint contains 25 separate causes of action, all of which, except the last, are upon claims assigned to plaintiff. Each of the 24 assigned causes of action first set forth are identical as to the character of the contract upon which the right to recover is based.
It is alleged, in effect, that at the time of the making of the contract sued upon the Oregon Traction Company was a corporation duly organized and existing under the laws of this state for the purpose of owning, purchasing constructing, and operating railways herein and in the city of Portland; that such corporation owned and was in possession of valuable franchises from the state of Oregon and the city of Portland of rights of way and easements for the construction and operation of railways, and of rails and other property, all of a value greater than $200,000; that the defendant corporation, desiring to purchase of the Oregon Traction Company all of its property, including rights of way and franchises, proposed to the several stockholders thereof that if they would consent to the sale the defendant would in consideration of such consent, pay to such several stockholders the amount that each of them had paid in cash upon his subscription to the stock of the corporation; that in consideration of the offer so made, and relying thereon, at a duly called meeting of the stockholders of the Oregon Traction Company held on January 31, 1906, there was passed by unanimous consent of all the stockholders a resolution, authorizing the sale; that afterwards, on March 15th, in pursuance of such consent, the defendant purchased at public sale all of the corporate property of the Oregon Traction Company, receiving and accepting from it a proper conveyance thereof, and entered into possession of the property, which it now owns and holds; that each of plaintiff's assignors, who were stockholders of the Oregon Traction Company, has paid on his stock to the company the amount sought to be recovered in each particular cause of action; and that in consideration of his consent so given to the sale defendant promised and agreed to and with such stockholder to pay said amount, which it has failed to do. To this is added an averment of an assignment of each of the several claims to plaintiff before the commencement of the action.
The averments of the complaint, setting forth plaintiff's individual claim, are the same as those of the assigned claims, with the exception as to the amount to be paid. In that case defendant was to pay plaintiff the reasonable value of his 998 shares of stock, which are alleged to be of the value of $35 per share. The answer consists of denials of the material averments of the complaint. Subsequent to the filing of this action, plaintiff brought a second action against the same defendant, upon the claims of 13 other shareholders, which had been assigned to him. The statement of the several causes of action therein is in the same language as those in the first complaint. This latter cause was put at issue upon an answer consisting of denials only. By consent of the parties an order was made by the court, consolidating these actions, and they were tried before a jury as one action. A verdict was returned in plaintiff's favor, and from the judgment entered thereon the defendant has appealed.
A.C. Emmons and W.M. Gregory (W.D. Fenton, on the brief), for appellant.
Martin L. Pipes, for respondent.
SLATER, J. (after stating the facts as above).
Many assignments of error, based on rulings of the court, on receipt and rejection of testimony, and on instructions given and refused, are presented for our consideration, but we are confronted with an objection entered by plaintiff's counsel to any
consideration thereof by the court. The objection is that no proper or legal bill of exceptions has been presented. There is on file a document indorsed "Bill of Exceptions," but it consists of a transcript of the reporter's notes of the oral testimony and proceedings of the trial, and covers 324 pages of typewritten matter, which has been certified to by the trial judge to be "a true and correct statement of all the proceedings had in said case, and together with the exhibits attached contains all of the evidence introduced upon the trial." It has been many times held by this court that such a transcript of the proceedings of a trial does not conform to the requirements of the statute, and is not a bill of exceptions. Counsel for appellant may term it a bill of exceptions, and so label it, but it is not one in fact. In some previous cases in this court, even where the infraction of the statute in such matters was not so extreme, and the burdens imposed upon the court not so great, this court has, of its own motion, refused to search through such a record to ascertain if error could be found. But in this case opposing counsel has entered an objection to the sufficiency of the bill of exceptions, insisting and protesting against the consideration thereof by the court. Under such circumstances, we cannot do otherwise than apply the reasoning found in the numerous previous rulings of the court announced in the following cases: Beadle v. Paine, 46 Or. 424, 80 P. 903; Nosler v. Coos Bay Nav. Co., 40 Or. 305, 63 P. 1050, 64 P. 855; MacMahon v. Duffy, 36 Or. 150, 59 P. 184; O'Connor v. Van Hoy, 29 Or. 505, 45 P. 762; Hamilton & Rourke v. Gordon, 22 Or. 557, 30 P. 495; Eaton v. Oregon R. & N. Co., 22 Or. 497, 30 P. 311; Janeway v. Holston, 19 Or. 97, 23 P. 850; Tucker v. Salem F.M. Co., 15 Or. 581, 16 P. 426; State v. Murray, 11 Or. 413, 414, 5 P. 55. We therefore must decline to examine any of the assignments of error based upon rulings made by the trial court on the admission or rejection of testimony, or instructions given or refused by the court.
It is next insisted that this record, called a "bill of exceptions," cannot be examined by the court for the purpose of determining the question arising on a denial of the defendant's motion for a nonsuit, for the reason that it affirmatively appears upon the face thereof that the transcript, or bill of exceptions, does not contain all of the evidence. To review alleged error in refusing a motion for an involuntary nonsuit, the bill of exceptions must affirmatively show that it contains all the evidence before the court at the time the motion was made. National Bank v. Fire Association, 33 Or. 173, 50 P. 568, 53 P. 8; Carney v. Duniway, 35 Or. 131, 57 P. 192, 58 P. 105; Adkins v. Monmouth, 41 Or. 266, 68 P. 737.
The transcript of the evidence shows that considerable documentary evidence was offered by plaintiff upon his case in chief, which was received and marked as exhibits in the case. The certificate of the trial judge to the bound volume of evidence is to the effect that it, together with the exhibits attached, contains all the evidence introduced upon the trial, but there are no exhibits attached, hence the effect of the certificate is that the transcript of the evidence alone does not contain all of the evidence. A separate bundle of papers fastened together, which appear to have been used as evidence in some case, has been sent up to this court, but none of the documents contained therein bear any indorsement indicating that they had been used as evidence in this case, or had been filed therein by the clerk of the trial court. They have not been made a part of the bill of exceptions by being physically attached thereto, nor are they identified in any manner by the trial judge. However, there is attached a certificate of the county clerk, to the effect that they constitute exhibits in the present case but that is not the identification required by the statute, and is not sufficient required by the statute, and is not sufficient to make them a part of the bill of exceptions. State v. Kline, 50 Or, 426, 430, 93 P. 237; Multnomah County v. Willamette Towing Co., 49 Or. 204, 214, 89 P. 389.
There...
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