McCann v. Burns

• Decision Date: 15 September 1914
• Citation: 73 Or. 167,143 P. 916
• Parties: MCCANN v. BURNS ET AL.
• Court: Oregon Supreme Court

143 P. 916

73 Or. 167

MCCANN v. BURNS ET AL.

Supreme Court of Oregon

September 15, 1914

On motion to strike out amended bill of exceptions. Allowed.

See also, 136 P. 659.

McBRIDE, C.J.

This was an action by Margaret Burns against H. C. and Mary L Burns, who were the parents of Hollie Burns for alienating the affections of Hollie Burns from his wife Margaret. The plaintiff had a verdict and judgment, and subsequently died, and D. R. McCann was appointed her administrator. Thereafter the defendants appealed.

Upon the argument and in the briefs frequent reference was made to the testimony in the case, and the transcript of the record here contains an order of the court certifying such transcript of testimony as a bill of exceptions; but the testimony is not attached to the order, nor is it on the files of the court, and there is no record of its having been filed. Subsequent to the argument of the case here, and after a suggestion that a transcript of the evidence alone would only allow the appellant to raise the single question as to the sufficiency of the evidence to go to the jury, appellants applied to the court ex parte for leave to amend the bill of exceptions originally filed, or which was supposed to have been filed, when the appeal was first brought here. The result is practically a new bill of exceptions, raising new questions that could not have been raised upon a simple transcript of the testimony, which the original bill of exceptions concededly was. While this court has been very liberal in permitting amendments to be made to correct mistakes in the original bill, it has never gone to the extent of allowing amendments to meet new phases of the case, developed upon the argument in this court.

Respondent urges, and justly, that appellants prepared and had certified exactly the kind of bill they asked for, and that it is unjust that, after argument here, they should be permitted to present a new bill, raising different issues from those triable upon the original bill. The cases in this court bearing upon this question are State ex rel. v Estes, 34 Or. 197, 51 P. 77, 52 P. 571, 55 P. 25; Bloch v. Sammons, 37 Or. 600, 55 P. 438, 62 P. 290; State v. Jennings, 48 Or. 483, 87 P. 524, 89 P. 421; Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 94 P 181, 95 P. 498, 102 P. 175, 1016; McGregor v. O. R. & N. Co., 50 Or. 527, 93 P. 465, 14 L. R. A. (N. S.) 668. In all these cases, except the one last cited, the moving party was the respondent, who sought to correct some mistake or omission of the appellant, which left the bill of exceptions in such a condition...