National Council of Knights and Ladies of Security v. McGinn

• Decision Date: 03 February 1914
• Citation: 138 P. 493,70 Or. 457
• Parties: NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY v. MCGINN, CIRCUIT JUDGE.
• Court: Oregon Supreme Court

138 P. 493

70 Or. 457

NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY v. MCGINN, CIRCUIT JUDGE.

Supreme Court of Oregon

February 3, 1914

In Banc. Original proceeding in mandamus by the National Council of the Knights and Ladies of Security against Henry E McGinn, Judge of Department No. 3 of the Circuit Court of Multnomah County, Oregon. Demurrer to alternative writ overruled.

Q. L. Matthews, of Portland (Christopherson & Matthews of Portland, on the brief), for plaintiff. I. N. Smith, of Portland (Littlefield & Smith, of Portland, on the brief) for defendant.

BURNETT J.

The contention before us arises on a demurrer to an alternative writ of mandamus issued out of this court and directed to the defendant as a judge of the circuit court of Multnomah county, commanding him to settle and sign a bill of exceptions in an action pending in that court, wherein plaintiff here was defendant and one Hoffman was plaintiff or to show cause why he has not done so. The writ recites the judgment rendered October 2, 1913, and an order allowing defendant there, the plaintiff here, "up to and including November 28, 1913, within which to move for a new trial, and within which to serve, file, and settle the bill of exceptions in said action." It narrates a stipulation filed in the circuit court November 11, 1913, signed by the attorneys for both parties, to the purport that: "In this action it is hereby stipulated and agreed by and between the parties hereto and their attorneys that the bill of exceptions herein may consist of a transcript of the whole testimony and all of the proceedings had at the trial, including the exhibits offered, received, and rejected, the instructions of the court to the jury and requested instructions of the respective parties. It is further stipulated and agreed that the bill mentioned may be settled by the court as and for a bill of exceptions in this action, and that plaintiff reserves all rights in the premises and reserves the right to move for a dismissal of the bill herein."

It is stated by the writ, in substance, that on November 25, 1913, a bill of exceptions, prepared as stipulated, was served upon plaintiff's counsel, and on the same day it was presented to the judge for settlement. Further, that on December 4, 1913, the settlement and allowance of the bill of exceptions came on for hearing before the court, at which hearing the parties were represented by their respective counsel, and that the judge, defendant herein, after argument of counsel, refused to sign, settle, or allow the bill of exceptions, but then and there made an order in these terms: "In this action, the defendant herein having served a bill of exceptions and presented the same to this court within the time provided by law, to wit, on the 25th day of November, A. D. 1913, and the allowing and settling of said bill of exceptions having come on regularly for hearing before the court on the 4th day of December, A. D. 1913, defendant appearing by Q. L. Matthews, one of its attorneys, and the plaintiff appearing by I. N. Smith, one of his attorneys, and the court having heard argument of counsel and being fully advised in the premises, refused to sign, settle, or allow said bill of exceptions, and upon its own motion granted the defendant a new trial herein. It is therefore hereby ordered and adjudged, that the defendant be and it is hereby granted a new trial in this action, and the judgment heretofore rendered and entered in favor of the plaintiff and against the defendant is hereby vacated and set aside. It is further ordered and adjudged that this order be and the same is hereby entered nunc pro tunc as for November 25, 1913, the date upon which the bill of exceptions herein was presented to this court." Finally it is stated that the judge examined the bill of exceptions, made no objections to the correctness thereof; that no objection was made or filed by plaintiff's counsel; but that the judge declined to settle the same without specifying any reason therefor, and granted a new trial, as stated above, although no motion had been made by either party for a new trial, all of which was entirely upon the judge's own motion, and was done more than 60 days after the rendition of the original judgment in the action. For cause why he has not settled the bill of exceptions, the defendant demurs to the alternative writ.

In substance, the first ground of demurrer, stated in several forms, is that the judgment from which the plaintiff here seeks to appeal has been set aside and a new trial granted; and second, that no motion for a new trial was ever made by plaintiff, and that, in the absence of such a motion, no exceptions can be settled or allowed for any of the reasons specified in the Code as grounds for granting a new trial; further, that the proffered bill, alleged to consist only of the transcript of the stenographer's notes of the testimony and proceedings at the trial, do not constitute a bill of exceptions which it is incumbent upon the defendant to settle or sign; and finally, "that the order granting time for the defendant, plaintiff herein, within which to file its motion for a new trial and to prepare its bill of exceptions was not an alternative, but a conjunctive order, and that, if the said defendant did not intend to move for a new trial, or did not consider that the presentation of the said bill of exceptions was a motion for a new trial, then the order has not been complied with."

Upon a proper showing, the court may, at a subsequent term, enter nunc pro tunc a judgment or order constituting a record memorial of what was actually done by the court at a former time. Says Mr. Justice Bean in Grover v. Hawthorne, 62 Or. 65, 116 P. 100, 121 P. 804: "When a judgment has been actually rendered or an order made by the court which is entitled to be entered of record, but, owing to the misprision of the clerk, has not been so entered, the court may order the entry to be made nunc pro tunc. But it is not the function of the court to create an order now, which ought to have been passed at a former time. In ordering an...