Oldland v. Oregon Coal & Navigation Co.
| Decision Date | 15 June 1909 |
| Citation | 102 P. 596,55 Or. 340 |
| Parties | OLDLAND v. OREGON COAL & NAVIGATION CO. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.
Action by Stanley Oldland against the Oregon Coal & Navigation Company. From a judgment for plaintiff and from a motion denying a new trial, defendant appeals. On motion to strike out bill of exceptions. Denied.
See also, 99 P. 423.
E.B. Watson, John F. Hall, and James T. Hall, for the motion.
J.W Bennett, A.J. Sherwood, and John S. Coke, opposed.
This is a motion to strike from the files transcripts of testimony which have been sent up to this court as bills of exceptions. This cause was thrice tried. At the first trial the jury failed to agree, and were discharged. At the second trial the defendant secured a verdict and judgment dismissing the action. This judgment was, on motion of plaintiff's counsel, set aside, and a new trial ordered. The plaintiff at the third trial obtained a judgment, and the defendant appealed therefrom and also from the order granting the new trial. The appeal having been perfected, there was filed with the clerk of this court a certified copy of the judgment roll herein, and also what are designated as volumes 1, 2, and 3 of bills of exceptions. Volume 1 consists of 9 pages of instructions, and of a transcript of the stenographic notes of all the testimony given at the second trial, comprising 342 typewritten pages; volume 2 is made up of the exhibits which were received in evidence; and volume 3 is formed of a copy of the stenographer's notes of the testimony given at the third trial, transcribed into longhand, containing 495 pages, and of copies of the instructions given and of those requested at the last trial comprising 19 pages, making a total of 962 pages. The motion interposed in this court assails what purports to be the transcripts of the second and the third trials, on the ground that the parts thereof, designated as "bills of exceptions," though containing statements of all the objections offered at the trial to the introduction, rejection, or exclusion of testimony, and the exceptions allowed, also include more of the testimony than is requisite to illustrate the alleged deviation from the established rules of evidence.
The statute directs that no particular form of exception is required to be taken at the trial to a decision upon a matter of law, and contains the further clause: "The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more." B. & C Comp. § 171. It does not appear that defendant's counsel at the second or the third trial, moved for a directed verdict for his client. In justification of the magnitude of the transcript of the last trial, attention is called to a motion to set aside the judgment rendered thereat, on the ground, inter alia, of the insufficiency of the evidence to uphold the verdict. If, for the reason assigned, the judgment given at the third trial had been annulled and the action of the court challenged by the plaintiff's counsel on appeal, it might have been necessary to file in this court a certified copy of sufficient of the testimony to negative and disprove the assertion in the motion, so as to determine therefrom whether or not an error had been committed in granting the assumed new trial. It will be borne in mind however, that the last judgment was not abrogated. An order setting aside a judgment and granting a new trial is, for the purpose of being reviewed, deemed a judgment or a decree from which an appeal lies. B. & C. Comp. § 547, as amended (Laws 1907, p. 313, § 6). The change in the statute limits the appeal to an order granting a new trial. The rule established prior to such amendment necessarily remains in force, and a motion to set aside a verdict and for a new trial, on the ground of the insufficiency of the evidence, is...
To continue reading
Request your trial