Senner v. Danewolf
| Decision Date | 02 December 1930 |
| Parties | SENNER v. DANEWOLF ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by Lewis Senner, by Katherine Senner, guardian ad litem against Henry Danewolf and wife and others. From the judgment, defendants appeal, and plaintiff moves to strike from the files the bill of exceptions filed by defendants.
Motion denied.
Collier, Collier & Bernard and William G. Smith, all of Portland, for the motion.
McDannell Brown, of Portland, Charles J. Zerzan, of Salem, and C. M Idleman, of Portland, opposed.
The plaintiff, who was successful below, has moved to strike from the files the bill of exceptions filed by the defendants on the ground that the time within which it was presented to the circuit court was in violation of section 2--703, Oregon Code Annotated. The material provisions of that section of our laws are: "A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within sixty (60) days after the entry of the judgment or decree, or within such further time as may be granted by order of the court."
The judgment was entered April 23, 1930; thus the 60 days granted by the above enactment to the defendants, as a period within which they could present for settlement their bills of exceptions, expired June 22, 1930. No bill was tendered, however, within that time, nor was any allowance of further time obtained within the 60-day period; but on July 15th the defendants obtained an order of the circuit court granting them "three weeks additional time in which to submit bill of exceptions." Within the latter time the bill was presented.
The sole question upon which our conclusion depends is whether the circuit court was without power to grant further time after the original 60-day period has expired; or, stated otherwise, the issue for determination is, Must a prospective appellant obtain, before his original period has elapsed, the privilege of filing a tardy bill? The act which governs the outcome of this issue certainly does not expressly require that "the further time" must be procured before the original time has elapsed; nor does it do so by implication. After granting to all prospective appellants sixty days for the above purpose, it makes provision for delayed appellants by permitting them to file their bills "within such further time as may be granted by order of the court." The 60-day period is allowed to all, but the "further time" is available only when granted by an order. Whether it should be allowed is dependent upon the sound discretion of the circuit court. So far we have considered all of the language of the statute, and still have found no requirement that the tardy appellant must obtain further time within the 60-day period, and hence conclude that there is none. Possibly the Legislature believed that occasionally it would be as unjust to compel the appellant to obtain within the 60-day period the privilege of filing a delayed bill as to file the bill within that time.
The mere fact that the order granting the further time was obtained ex parte, if that is a fact, and does not recite the reasons which moved the court into action does not show an abuse of discretion. All presumptions are in favor of regularity, and it is incumbent upon the party who attacks the order to prove an abuse of discretion.
It follows that the motion must be denied.
I regret that I cannot subscribe to the majority opinion in this case. Believing as I do that said opinion in effect nullifies the intention of the Legislature in amending Or. L § 171, Gen. Laws 1929, chapter 356, I believe it to be my duty to express the reasons for my dissent.
The Legislature must have had some intention, some direct purpose, when it enacted said chapter 356. Prior to the enactment of that chapter the time for certifying a bill of exceptions rested in the discretion of the trial judge. Weinstein v. Wheeler, 127 Or. 406, 257 P. 20, 271 P. 733, 62 A. L. R. 574; Vawter v. Rogue River Valley Can. Co., 124 Or. 94, 257 P. 23, 262 P. 851; Walker v. Fireman's Fund Insurance Co., 122 Or. 179, 257 P. 701; Sitton v. Goodwin, 119 Or. 74, 248 P. 163. When the circuit court had adopted rules governing the presentation of bills of exceptions, the judge of the court was bound by such rules. Oxman v. Baker County, 115 Or. 436, 439, 234 P. 799, 236 P. 1040.
Or. Code Ann., § 2--703, General Laws 1929, c. 356, p. 410, was enacted for the purpose of making uniform throughout the state the time in which bills of exceptions should be presented as a matter of right. The desired uniformity would be absolutely prevented by the majority opinion. In the instant case the judgment was entered on the 23d day of April, 1930. Time in which to present the bill of exceptions under said section 2--703 expired on the 22d day of June. An order extending the time for filing said bill of exceptions was not made until the 15th day of July, 22 days after the time had expired. The order extending the time was made without notice to respondent and without any showing of a reason therefor.
In another case pending in this court at this time a bill of exceptions was not signed until almost a year after the judgment was rendered and entered. The mischief intended to be remedied by the enactment of said chapter 356 is not accomplished if the construction placed thereon by the majority opinion obtains. The two pending cases referred to demonstrate that the statute will, under the majority opinion, encourage confusion rather than make for uniformity. The successful party in the trial court is ignored. A different question would be presented if such opposing party had notice of an application for extension of time or consented thereto.
"Where the time for filing bills of exceptions is limited by statute, they are void if filed beyond the expiration of the...
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Senner v. Danewolf
...guardian ad litem, against Henry Danewolf and wife and others. Judgment for plaintiff, and defendants Danewolf appeal. Affirmed. See, also, 293 P. 599. McDannell Brown, of Portland, and Charles J. of Salem (C. M. Idleman, of Portland, on the brief), for appellants. Henry E. Collier, of Port......