Weinstein v. Wheeler

• Decision Date: 21 June 1927
• Citation: 257 P. 20,127 Or. 406
• Parties: WEINSTEIN v. WHEELER.
• Court: Oregon Supreme Court

257 P. 20

127 Or. 406

WEINSTEIN v. WHEELER.

Supreme Court of Oregon

June 21, 1927

In Banc.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Jacob Weinstein, a minor, by Rose Weinstein, guardian ad litem, against Shanna C. Wheeler. Judgment for defendant, and plaintiff appeals. On motion to dismiss appeal. Motion denied.

E. L. McDougal, of Portland, for the motion.

Abe Eugene Rosenberg, of Portland, opposed.

RAND J.

The defendant moves to dismiss plaintiff's appeal for the reason that, at the time the transcript was filed, the bill of exceptions was not made a part thereof, and for the further reason that the bill of exceptions was not prepared and tendered within the time previously allowed by the judge who tried the action in the court below.

Section 554--1, Or. L., provides that:

"When an appeal is perfected the original pleadings and the original bill of exceptions shall be sent by the clerk or other proper officer of the trial court, to the clerk of the Supreme Court or appellate court, and shall be a part of the transcript in the Supreme Court or appellate court so long as it may be needed there. * * *"

This statute makes it the duty of the clerk of the trial court to forward the bill of exceptions to this court, and this he should do as soon as it is certified to and filed in his office. But until so settled, certified to, and filed, it is not a part of the record of the lower court and cannot become a part of the record here. If the clerk of the trial court fails in the performance of this duty, rule 35 of this court provides a method for having the bill of exceptions brought here.

Our rules define the transcript which must be filed in order to comply with the requirements of section 554, Or. L., and prescribe what the transcript shall contain, and also provide for the filing of a printed abstract and what it shall contain. Other than in criminal cases, the rules providing for the filing of the transcript and printed abstract contain no reference to any bill of exceptions, and therefore under our rules the bill of exceptions is no part of the transcript until forwarded to this court by the clerk of the trial court, when, by force of the statute, it as well as the original pleadings then becomes a part of the transcript. Neither the statute nor the rules prescribe the time in which the bill of exceptions must be filed, nor deny to the appellant the right to have it filed at any time. After it has been filed in this court it may be amended or corrected by the trial court up to the time of the final hearing of the cause. Brewster v. Springer, 79 Or 88, 154 P. 418, and authorities there cited.

This appeal was taken and perfected in the manner provided by statute, and the transcript and printed abstracts have been filed in compliance with the rules of this court. These alone are sufficient without any bill of exceptions to submit the question of the jurisdiction of the trial court and of the sufficiency of the complaint, and for this reason the motion to dismiss the appeal must be overruled. Nosler v. Coos Bay Navigation Co., 40 Or. 305, 308, 63 P. 1050, 64 P 855, and Grover v. Hawthorne, 62 Or. 65, 68, 116 P. 100, 121 P. 804.

The bill of exceptions on file in this cause has been signed and certified to by the trial judge and contains a statement that it was prepared and tendered within the time allowed. This statement of that fact by that court is conclusive upon this court, and we have no more right to disregard that statement of fact than we would have to question any other statement of fact contained in the bill of exceptions.

There is no time fixed by statute in this state within which a circuit judge may sign a bill of exceptions or which denies his right to sign it after...