Neal v. Roach

• Decision Date: 08 March 1910
• Parties: NEAL v. ROACH.
• Court: Oregon Supreme Court

107 P. 475

61 Or. 513

NEAL v. ROACH.

Supreme Court of Oregon

March 8, 1910

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Action by Napoleon Neal against Milos Roach. Plaintiff had judgment and defendant appeals. Heard on motion to dismiss. Motion denied.

V.G Cozad, for appellant.

Errett Hicks, for respondent.

MOORE C.J.

This is a motion to dismiss an appeal from a decree in equity on the ground that no transcript of the testimony has been sent up to this court. A counter motion was interposed, either to remand the cause to take the testimony again or to have evidence considered in support of one of the issues which is asserted to be decisive of the suit. It appears from affidavits presented herewith that the court reporter died before extending his shorthand notes of the trial, and that no stenographer who had examined the memoranda so kept had been able to make a correct version thereof, thereby rendering it impossible for the defendant, who is appellant to secure a copy of the sworn declarations of the witnesses so as to file it with our clerk.

This suit was instituted June 12, 1906, to determine the right to the use of water from a nonnavigable stream for irrigation and one of the defenses interposed is the plea of res adjudicata, based on a decree rendered June 11, 1904, in a suit between the same parties. The decree appealed from awarded to the plaintiff certain rights to the use of the water, and determined that he was not barred from maintaining this suit in consequence of the prior decree. A transcript of the pleadings, findings, and decree in this suit were filed in this court within the time limited therefor; thus conferring jurisdiction of the cause. The defendant on April 1, 1909, filed a certified copy of a judgment roll containing what purports to be a record of such former adjudication, and also filed the affidavit of Wm. H. Schroeder, the county clerk of Grant county, which is to the effect that at the trial herein he, as a witness, having identified the complaint, answer, reply, decree, etc., in the former suit, such pleadings and determination were received in evidence, and permission was granted to substitute copies thereof. Schroeder's official certificate was appended to a copy of the decree in the former suit April 18, 1907, which was the day after this cause was tried, but his certificate to a copy of the pleadings in the former suit was not...