Kraft v. Montgomery Ward & Co.
| Decision Date | 25 September 1957 |
| Parties | Anton KRAFT, Respondent and Cross-Appellant, v. MONTGOMERY WARD & CO., a corporation, and R. F. Hutchinson, Appellant. |
| Court | Oregon Supreme Court |
Earl A. Fewless, Portland, for the motion.
No appearance contra.
This is an action for damages in which defendant Montgomery Ward & Co. appeals from a judgment against it and in favor of plaintiff, and plaintiff cross-appeals from a judgment exonerating the individual defendant, Richard F. Hutchinson.
Appellant, Montgomery Ward & Co., has filed its short transcript on appeal and a bill of exceptions incorporating three volumes which are certified by the trial judge to contain all of the proceedings had at the trial and also incorporating certain documents which are certified to be all of the exhibits admitted in evidence. The envelope of exhibits submitted with the bill of exceptions contains those which were rejected as well as those which were received, although only the latter are referred to and incorporated in the bill of exceptions.
The plaintiff (respondent and cross-appellant) has not yet filed his short transcript, but he has obtained extensions of time from the trial court for the purpose of filing his short transcript and a bill of exceptions. He now moves this court for permission to adopt by reference and incorporate in his bill of exceptions the transcript of proceedings and exhibits which have been submitted with Montgomery Ward's bill of exceptions, including the exhibits rejected as well as those received.
For reasons to be hereafter stated, we deny the motion. The matter would not warrant publication of an opinion except for an apparently prevailing misconception with respect to the function of a bill of exceptions.
In McCarty v. Hedges, Or., 309 P.2d 186, 187, we said:
'* * * our practice does not contemplate more than one bill of exceptions in a given case, at least where the one bill of exceptions includes all the testimony and proceedings had at the trial.'
What we there said with respect to a separate appeal by a co-defendant applies equally to a cross-appellant. Where one appellant has filed a bill of a exceptions containing all of the proceedings at the trial, a cross-appellant may rely upon it in this court and need not file a duplicate. Ordinarily the party first giving notice of appeal is treated as the primary appellant, and he assumes the burden of initiating the bill of exceptions.
The Oregon Constitution (Amended Article VII, § 3) provides that 'either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal.' The reference to 'the bill of exceptions' indicates an intent that there be but one bill of exceptions in a case.
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