Morrison v. Franck

• Decision Date: 04 October 1910
• Citation: 110 P. 1090,59 Or. 429
• Parties: MORRISON et al. v. FRANCK.
• Court: Oregon Supreme Court

110 P. 1090

59 Or. 429

MORRISON et al. v. FRANCK.

Supreme Court of Oregon

October 4, 1910

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Finley Morrison and another, partners doing business under the firm name of Finley Morrison & Son, against L.S. Franck. From the judgment, defendant appeals. On motion to affirm judgment. Denied.

Platt & Platt, for appellant.

Coovert & Stapleton and J.F. Boothe, for respondents.

MOORE C.J.

This is a motion to affirm a judgment. An abstract, in lieu of a transcript, was filed with our clerk March 29, 1910, within the time prescribed. The respondents' counsel, on June 24, 1910, interposed this motion, based on the ground that no proper bill of exceptions had been sent up and that no question respecting the pleadings or the jurisdiction had been raised.

Rule 20 of the Supreme Court, as amended October 5, 1909, so far as applicable herein, is as follows: "All motions must be filed within ten days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects except matters of jurisdiction." The statute regulating the transfer of causes contains the following clause "Upon the appeal being perfected, the appellant shall within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and thereafter the appellate court shall have jurisdiction of the cause, but not otherwise." B. & C Comp. § 553.

One of the errors alleged is the refusal of the court to grant a nonsuit. The determination of that question requires a consideration of all the testimony introduced prior to the request for the special judgment. The sworn declarations of the witnesses occupy 144 pages of the printed abstract, but whether or not that volume contains all the testimony received is impossible to state, for no certificate of the judge is appended. It is unnecessary to speculate upon the sufficiency...