Trummer v. Konrad

• Decision Date: 27 December 1897
• Parties: TRUMMER v. KONRAD.
• Court: Oregon Supreme Court

51 P. 447

32 Or. 54

TRUMMER v. KONRAD.

Supreme Court of Oregon

December 27, 1897

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Louis Trummer against William Konrad. From a judgment for plaintiff, defendant appeals. Affirmed.

A. Schutz, for appellant.

S.C Spencer, for respondent.

MOORE C.J.

This is an appeal by the defendant from a judgment rendered against him for the sum of $533.15, the amount due on a promissory note, including attorney's fees. The notice of appeal assigns as error the action of the court (1) in directing a reference; (2) in rendering judgment for the amount demanded in the complaint, notwithstanding the finding by the court that defendant was entitled to a credit of $133 on his counterclaim; (3) in making the unreasonable award of $75 as attorney's fees after finding such credit should be allowed; and (4) in adjourning the court for the term the same day the judgment was rendered, thereby depriving the defendant of his right to a day in which to move for a new trial.

No bill of exceptions appears in the transcript, but the report of the referee, and the order of the court modifying the fifth and setting aside the eleventh finding of fact, are included in the record. In Osborn v. Graves, 11 Or. 526, 6 P 227, Thayer, J., in speaking of the report of a referee included in the transcript on appeal, but not made a part thereof by bill of exceptions, says: "The fact that the report is found in the judgment roll, and a copy has been certified to this court as a part of the transcript, does not authorize us to consider it, any more than it would any other paper not properly a part of the transcript." In Van Bibber v. Fields, 25 Or 527, 36 P. 526, the principle announced in the preceding case was approved and followed, so that the rule may be considered as settled in this state. The statute authorizes the trial court to direct a reference when the issue of fact to be tried involves the examination of a long account (Hill's Ann.Laws Or. § 222); and it has been held that the power thereby conferred was not an infringement of the constitutional right to a trial by jury ( Tribou v Strowbridge, 7 Or. 156; McDonald v. Mortgage Co., 17 Or. 626, 21 P. 883). It must be presumed that official duty has been regularly performed, and, this being so, it follows, in the absence of any proof to the contrary that the reference was made in pursuance of law; and...