Sherman v. Bankus

• Decision Date: 07 October 1959
• Citation: 344 P.2d 771,218 Or. 271
• Parties: Arthur Eber SHERMAN, Jr., Appellant, v. Elmer BANKUS, dba Brookings Land and Townsite Co., Red Company, a corporation, Doe one, Doe two, Respondents.
• Court: Oregon Supreme Court

Page 771

344 P.2d 771

218 Or. 271

Arthur Eber SHERMAN, Jr., Appellant, v. Elmer BANKUS, dba Brookings Land and Townsite Co., Red Company, a corporation, Doe one, Doe two, Respondents.

Supreme Court of Oregon, In Banc.

Submitted on briefs Sept. 10, 1959.

Decided Oct. 7, 1959.

Arthur E. Sherman, Jr., Spokane, Wash., in pro. per.

Cake, Jaureguy, Hardy & Buttler, Portland, for respondent.

McALLISTER, Chief Justice.

The plaintiff, Arthur Eber Sherman, Jr., brought this action at law to recover from the defendant Elmer Bankus damages in the sum of $1,000, allegedly resulting from the breach by defendant of his agreement to have plaintiff survey certain premises in Brookings and to pay plaintiff the reasonable value of said services. The court tried the case without a jury and entered judgment for defendant. Plaintiff appeals.

The plaintiff assigns as error (1) the refusal of the court to settle the bill of exceptions tendered by plaintiff; (2) the denial of plaintiff's motion for new trial; (3) the sustaining of an objection to the introduction in evidence of certain exhibits; and (4) the sustaining of an objection to the introduction in evidence of a certain letter.

The refusal of the court to settle the bill of exceptions tendered by plaintiff cannot be assigned as error on appeal. Mandamus is the proper remedy to compel a circuit judge to settle the bill of exceptions. Ah Lep v. Gong Choy & Gong Wing, 13 Or. 205, 9 P. 483; Che Gong v. Stearns, 16 Or. 219, 17 P. 871; McElvain v. Bradshaw, 30 Or. 569, 48 P. 424; National Council of Knights and Ladies of Security v. McGinn, 70 Or. 457, 138 P. 493; Kubik v. Davis, 76 Or. 501, 147 P. 552; State ex rel. Luedinghaus Lumber Co. v. Stapleton, 139 Or. 402, 10 P.2d 600. Although it is not a part of the record in this case, we take notice that on November 1, 1957, plaintiff filed in this court a petition for a writ of mandamus to compel the circuit judge who tried this case to settle the bill of exceptions. On November 13, 1957, this court denied the petition without opinion.

The petition disclosed, as does the record in this case, that the bill of exceptions was not tendered within the time specified by statute. ORS 19.100(1) provides that a bill of exceptions must be tendered within 60 days after the entry of the judgment or within such further time as may be granted by the court. This court has repeatedly held that the circuit court has no power to settle a bill of exceptions not tendered within the time specified by the statute. Williams v. Ragan, 174 Or. 328, 143 P.2d 209; La Grande Air Service v. Tyler, 193 Or. 329, 237 P.2d 503; Fields v. Fields, 213 Or. 522; 307 P.2d 528; 326 P.2d 451. A bill of exceptions settled after the time allowed by statute may be stricken from the record. See La Grande Air Service v. Tyler, supra.

The judgment in this case was entered on May 8, 1957. No extension of time within which to tender the bill of exceptions was granted and the bill was not tendered until July 15, 1957. The court by order dated July 30, 1957, refused to settle the bill of exceptions.

In his brief plaintiff repeats an argument previously made in support of his petition for writ of mandamus. He contends that the judgment entered on May 8, 1957, was void because no findings of fact were entered and that consequently his bill of exceptions was tendered in time. Assuming that no findings were entered, the judgment was not void but only voidable. See Glickman v. Solomon, 140 Or. 358, 12 P.2d 1017; State ex rel. Bassett v. Bassett, 166 Or. 628, 642, 113 P.2d 432; 114 P.2d 546; Farris v. Pendleton, 204 Or. 530, 535, 281 P.2d 972; 284 P.2d 362; and Tully v. Tully, 213 Or. 124, 322 P.2d 1085. Since plaintiff's brief contains no assignment of error based on any alleged failure of the trial court to make findings of fact, we are not called on to decide whether sufficient findings were entered. Our rules provide that in appeals in actions at law no alleged error of the circuit court will be considered by this court unless regularly assigned as error in appellant's opening brief. See Rule 50, Rules of the Supreme Court.

Plaintiff's second assignment of error is based on the denial of his motion for new trial. The motion for new trial specified only alleged errors committed during the trial and known to plaintiff at the time. Under such circumstances, the denial of the motion for new trial cannot be assigned as error on appeal and presents no question for consideration in ...