Watson v. Southern Oregon Co.

• Decision Date: 12 August 1901
• Citation: 39 Or. 481,65 P. 985
• Parties: WATSON et al. v. SOUTHERN OREGON CO.
• Court: Oregon Supreme Court

65 P. 985

39 Or. 481

WATSON et al. v. SOUTHERN OREGON CO.

Supreme Court of Oregon

August 12, 1901

Appeal from circuit court, Multnomah county; A.L. Frazer, Judge.

Action by E.B. Watson and another against the Southern Oregon Company, a corporation. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This is an action to recover $6,000 for professional services rendered by the plaintiffs for defendant in three suits brought against it and others by the United States to have certain lists and patents issued to the Coos Bay Wagon-Road Company vacated and set aside, and certain deeds from the latter company to defendant declared null and void. The answer admits the employment of plaintiffs, but denies that the services rendered were reasonably worth any greater sum than $500. Upon the trial the value of the property involved in the litigation between the defendant and the United States became an important question. During the cross-examination of a witness for the defendant who had testified upon that subject, the plaintiff Watson offered in evidence a decree of the circuit court of the United States for the district of Oregon in a suit by Rotch against the Oregon Southern Improvement Company foreclosing a mortgage on property, which he contended was the same as that involved in the suits in which he had appeared as counsel for the defendant. Objection was made to the admission of the decree, whereupon Mr Mendenhall, attorney for plaintiffs, said, "I want to show that they mortgaged this property for over thirteen hundred thousand dollars, and they got the money on it." The court intimated that the testimony was not competent whereupon Mr. Watson, in the presence and hearing of the jury, stated that he had in his possession a transcript of such decree, which he then offered in evidence as tending to show the value of the land involved in the suits brought by the United States against the defendant, and in which his firm had appeared as counsel; and that it appeared by the decree that such lands, including some other property purchased from one Luse, were valued at $2,000,000, and that the defendant had issued bonds upon the basis of such valuation, and actually received thereon from $1,200,000 to $1,500,000. Objection to the admission in evidence of the judgment roll on the ground that it was incompetent irrelevant, and immaterial, and not proper cross-examination, was sustained, but no objection was made or exception taken to the statements of counsel as to what they expected to show by the record offered, and no ruling thereon was requested of the trial court. During his argument to the court on questions of law, Mr. Mendenhall cited and offered to read the opinion in the case of U.S. v. Coos Bay Wagon-Road Co. (C.C.) 89 F. 151, whereupon counsel for defendant objected on the ground that there was no question of law before the court to which the matter contained in the opinion had any relevancy. The objection was overruled, and an exception noted. Subsequently the opinion was read in full to the court by Mr. Watson in making his closing argument. The jury returned a verdict in favor of the plaintiffs for $6,000, but the court, on a motion for a new trial, denied the same, on condition that plaintiffs would remit $1,000 of the verdict, which they did, and a judgment was accordingly entered in their favor for $5,000, from which the defendant appeals, assigning as error: (1) The statements of counsel as to what they expected to prove by the judgment roll in the case of Rotch against the Oregon Southern Improvement Company; (2) the reading by them of the opinion in the case of U.S. v. Coos Bay Wagon-Road Co., supra; and (3) the refusal of the trial court to set aside the verdict and grant a new trial.

Rufus Mallory, for appellant.

B.B. Beekman and R.G. Morrow, for respondents.

BEAN, C.J. (after stating the facts).

It has been the uniform holding of this court, ever since the case of State v. Anderson, 10 Or. 448 that improper remarks of counsel will not justify a reversal of the judgment, unless connected with some judicial error on the part of the lower court. State v Abrams, 11 Or. 169, 8 P. 327; State v. Hatcher, 29 Or. 309, 44 P. 584; Boyd v. Electric Co., 37 Or. 567, 62 P. 378; State v. McDaniel (Or.) 65 P. 520. No such error is shown by this record. No objection was made or exception taken to the statements of counsel as to what they expected to prove by the judgment roll offered in evidence, and no ruling thereon was requested of the trial court; so that the record presents no action of the court in relation to the matter subject to review on appeal. "As this is an appellate tribunal, constituted to revise and correct the errors committed by the trial court," say the court, in State v. Tamler, 19 Or. 528, 25 P. 71, "it is only when that court has acted, and the act is claimed to be error, and disclosed by the record, that such error becomes the subject of our power and duties." Improper language or conduct of counsel forms no exception to this rule, but is to be treated as other matters of objection and exception transpiring at the trial. There may, perhaps, be extreme cases of positive and plainly fraudulent misconduct on the part of counsel, which will justify a reversal of the judgment when duly excepted to, although the trial court may attempt to correct the error. Jordon v. Wallace, 67 N.H. 175, 32 A. 174; Coal Co. v. Sneddon, 99 Ky. 684, 34 S.W. 228; Railroad Co. v. Cooper, 70 Tex. 67, 8 S.W. 68; Waldron v. Waldron, 156 U.S. 361, 15 Sup.Ct. 383, 39 L.Ed. 453. But, where the conduct of counsel goes without protest, and no objection is made thereto until the losing party moves for a new trial, the error, if any, must be considered as waived, and furnishes no question for consideration on appeal. Ross v. City of Davenport, 66 Iowa, 548, 24 N.W. 47; Riech v. Bolch, 68 Iowa, 526, 27 N.W. 507; Powers v. Mitchell, 77 Me. 368; Sherman v. Railroad Co., 86 Me. 422, 30 A. 69; Skaggs v. Given, 29 Mo.App. 612; State v. Forsythe, 89...