Nosler v. Coos Bay, R. & E.R. & Nav. Co.

• Decision Date: 11 March 1901
• Citation: 63 P. 1050,40 Or. 305
• Parties: NOSLER v. COOS BAY, R. & E.R. & NAV. CO.
• Court: Oregon Supreme Court

63 P. 1050

40 Or. 305

NOSLER v. COOS BAY, R. & E.R. & NAV. CO.

Supreme Court of Oregon

March 11, 1901

Appeal from circuit court, Coös county.

Action by J.T. Nosler, administrator of the estate of Matilda E Nosler, against the Coos Bay, Roseburg & Eastern Railroad &amp Navigation Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

E.B. Watson, for the motion.

S.H Hazard, opposed.

PER CURIAM.

This is a motion to strike from the files what purports to be a transcript of the stenographer's notes of the proceedings had at the trial in the court below from the impaneling of the jury to the rendition of their verdict, which covers 326 pages of the printed abstract, and is designated as "Transcript of Trial," for the reason that it is not properly a part of the record. A transcript of the stenographer's notes of the trial of an action at law is no part of the record on an appeal to this court, unless made so by a bill of exceptions. McQuaid v. Railroad Co., 19 Or. 535, 25 Pac.26; Reynolds v. Jackson Co., 33 Or. 422, 53 P. 1072. Now, the bill of exceptions in this case simply recites the appointment of the stenographer, the fact that he took down in shorthand all the evidence given offered, and received on the trial, all exceptions and objections made by the attorneys for the parties during the course of the trial, and the instructions of the court, and other proceedings connected therewith; that he transcribed his notes into longhand in due form, and entitled the same "Transcript of Trial," and certified and filed it with the clerk. Then follows an order of the court "that said transcript of trial, so made by said W.U. Douglas, and so filed in said court, be, and the same hereby is, made a part of this bill of exceptions, the same as if it were copied therein; and the clerk of this court is hereby ordered and directed, in making a transcript of this action for appeal to the supreme court, to make a copy of said transcript of trial so made by W.U. Douglas, and to attach the same to this bill of exceptions as a part thereof." It then proceeds to recite that "such transcript of trial has been examined and approved as correct, except as hereinafter changed or modified." Then follows a reference by pages and questions to certain matters that occurred during the trial, and certain explanations are made in reference thereto, but the bill does not contain, or purport to contain, the statement of any objection or exception, "with so much of the evidence or other matter as is necessary to explain it," as required by section 232, Hill's Ann.Laws. In Roberts v Parrish, 17 Or. 583, 22 P. 136, it was held that although a bill of exceptions recited that a certain deposition was made a part thereof, it was insufficient to present for consideration any alleged errors relating to matters contained in such deposition. The court, speaking through Mr. Justice Strahan, said: "To become a part of the record, it [the deposition] must be either copied into the bill of exceptions, or attached to...