Tellkamp v. McIlvaine

• Decision Date: 16 November 1948
• Parties: TELLKAMP <I>v.</I> McILVAINE
• Court: Oregon Supreme Court

184 Or. 474

199 P.2d 246

TELLKAMPv.

McILVAINE

Supreme Court of Oregon.

Argued October 7, 1948.

Affirmed November 16, 1948.

Appeal and error — Motion — New trial — Bill of exceptions — Judgment roll

1. An appellant, who wishes to assign as error an order which denied his motion for a new trial, should see to it that motion for a new trial and proceedings thereon are made a part of the bill of exceptions and that bill of exceptions becomes a part of judgment roll. O.C.L.A., §§ 6-901, 26-1221.

Appeal and error — Exceptions, bill of — Written form — Signature — Judge

2. Challenged order, ruling, or other breach of judicial duty not shown by normal record must be reduced to written form and incorporated in a bill of exceptions, which must bear the authenticating signature of judge of trial court.

Appeal and error — Record — Judgment roll

3. Supreme Court, in determining whether or not a judgment is reversible, will not go beyond the record which consists of the judgment roll.

Appeal and error — Judgment roll — Contents

4. Normally, the contents of the judgment roll are the summons, proof of service, the pleadings, and the judgment.

Appeal and error — Judgment roll — Bill of exceptions

5. In order to import into the judgment roll rulings, orders, and purported irregularities, which are not normally part of the contents of judgment roll, a bill of exceptions must be employed which is the means provided by law for importing into judgment roll matters dehors the record which are dependent for their authenticity upon signature of the trial court or the procedure delineated by statute. O.C.L.A., § 5-702.

Appeal and error — New trial order — Based on pleading — No bill of exceptions

6. The correctness of a new trial order, if it is based upon the pleading, may be determined by Supreme Court even in absence of the bill of exceptions, since pleadings are a part of the judgment roll.

Appeal and error — Bill of exceptions — Signature of trial judge

7. Whenever regularity of an order or other ruling is dependent upon something, as, for instance, an affidavit, a deposition, or a transcript of evidence, a bill of exceptions bearing signature of trial judge is indispensable and the mere fact that clerk of court may choose to include all of such papers in judgment roll will not suffice.

Appeal and error — Bill of exceptions — Stricken — Affirmance

8. Where bill of exceptions had been stricken from files on ground that it was not filed within time permitted by law, assignments of error that trial judge made improper comment and that he erred in denying motion for new trial were dependent upon matter which was no longer before Supreme Court and an affirmance was necessary.

                  See 4 C.J.S., Appeal and Error, § 729
                  30 A.L.R. 700
                  3 Am. Jur. 246
                

Appeal from Circuit Court, Multnomah County.

FRANK J. LONERGAN, Judge.

Donald H. Joyce, of Portland, argued the cause and filed a brief for appellant.

E.K. Oppenheimer, of Portland, argued the cause for respondent. With him on the brief were Wilbur, Beckett, Oppenheimer, Mautz & Souther, of Portland.

Before ROSSMAN, Chief Justice, and BELT, BAILEY, and BRAND, Justices.

Action by Herman M. Tellkamp against Frederick P. McIlvaine to recover for injuries sustained in an automobile accident. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

ROSSMAN, C.J.

This is an appeal by the plaintiff from a judgment of the circuit court, which is based upon the verdict of a jury. Both verdict and judgment are in favor of the defendant. The action was predicated upon averments that the defendant negligently drove his automobile into collision with one in which the plaintiff was riding, thereby injuring the plaintiff.

The appellant's brief presents two assignments of error. The first charges that error was committed when the trial judge, according to the appellant, made a remark concerning the manner in which the plaintiff's counsel was conducting the trial. The second is: "The court erred in denying appellant's motion for a new trial."

The motion for a new trial stated four propositions as its basis; they are:

"The trial court erred in making comment upon the manner in which plaintiff's attorney was conducting said trial, and in the presence of the jury."

"Plaintiff has discovered evidence, material to the rights of the plaintiff, said evidence having been impossible to obtain prior to the time of trial, although plaintiff made diligent and extensive search for the witness * * *."

"The jury, duly impaneled, drawn and qualified in said trial, returned its verdict for the defendant, which verdict was clearly inconsistent with and contrary to the undisputed evidence offered in said trial."

"The jury, duly impaneled, drawn and qualified in said trial, returned its verdict for the defendant, which verdict was contrary to the instructions of the trial court."

November 4, 1947, this court struck from the files the appellant's bill of exceptions for the reason that it was not filed within the time permitted by law. The question now occurs as to whether or not the assignments of error are available for consideration. It will be observed that it is impossible to determine their merit, if any, without a knowledge of what took place during the trial. We shall now consider whether or not the absence of a bill of exceptions precludes a consideration of the assignments of error.

Oregonian Railway Co. v. Wright, 10 Or. 162, which was presented to this court more than three score years ago, brought before the court at least one phase of the problem aforementioned. In that case the following order of events had occurred: judgment was entered against the plaintiff; the plaintiff moved for a new trial; the motion for a new trial was denied; and the plaintiff, upon appealing, assigned as error the entry of the order which denied him a new trial. We now quote from the decision:

"* * * As to the motion for a new trial and the proceedings thereon, they are not before us, so that we can consider them. They have not been made a part of the bill of exceptions so that they could properly go into the judgment roll. The transcript upon which the case must be tried here is simply a certified copy of that roll — nothing more."

1. The significance of that holding is evident: an appellant who wishes to assign as error an order which denied his motion for a new trial should see to it that the motion for a new trial and the proceedings thereon are made a part of the bill of exceptions. He should also see to it that the bill of exceptions becomes a part of the judgment roll.

Twenty years before the decision in Oregonian Railway Co. v. Wright was made, our legislature adopted a code of appellate procedure which included the following provision:

"After docketing the judgment, and before the next regular term of the court, the clerk shall prepare and file in his office the judgment roll as provided in this section:

"(1) If the complaint has not been answered by any defendant, * * *;

"(2) In all other cases, he shall attach together in like manner the summons and proof of service, the pleadings, bill of exceptions, all orders relating to a change of parties, together with a copy of the entry of judgment, and all other journal entries or orders in any way involving the merits, and necessarily affecting the judgment;

"(3) * * *."

(Now § 6-901, O.C.L.A. As to criminal cases, see § 26-1221, O.C.L.A.)

From the foregoing it must be clear that a motion for a new trial should be made a part of the bill of exceptions, and that the latter should be included in the judgment roll.

In State v. Drake, 11 Or. 396, 4 P. 1204, the appellant's presentation of a contention similar to that now before us induced Mr. Justice Lord to write an opinion on behalf of this court which portrays carefully the procedure an appellant should take in order to bring before this court for determination the regularity of an order that denied a motion for a new trial. The defendant in that case, upon conviction of the crime of murder, assigned as error the denial of his motion for a new trial, which was based upon a contention that the trial judge permitted the district attorney to employ unfair argument. After the decision had taken notice of the practice that prevailed before the enactment of the Statute of Westminister 2, 13 Ed. 1, Ch. 31, which authorized the use of bills of exceptions, it described the procedure which developed after the adoption of that act. Concerning the latter, the decision said:

"Its object was to bring into the record the particular matter excepted to, and supposed to be error, and which the record otherwise would not disclose, to lay the foundation for proceedings in error."

Thus the purpose of a bill of exceptions is to bring into the record and make a part of it matters not otherwise included within it. Our next quotation from the opinion states the manner in which the purpose is accomplished:

"It was required, therefore, to be in writing, clearly stating the point wherein the court is supposed to have erred, with the necessary facts and circumstances; to attest the accuracy and authority of which, it must be signed and sealed by the judge who made the ruling, or decision."

2. It is seen from that sentence that in order to bring before this court for consideration a purported irregularity not shown by the normal record, the challenged order, ruling or other breach of judicial duty must be reduced to written form and incorporated in a bill of exceptions bearing the signature of the judge of the trial court. The requirement that the bill of exceptions must bear the authenticating signature of the judge is of vital importance. We again quote from Mr. Justice Lord's opinion:

"Now it is perfectly clear that the matter alleged in the affidavit of the defendant could, in no way, constitute any part of the record, except through the instrumentality of a bill of exceptions. It is not intended, in...