West v. McDonald
| Decision Date | 08 December 1914 |
| Citation | 144 P. 655,74 Or. 421 |
| Parties | WEST v. MCDONALD. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Union County; J. W. Knowles, Judge.
Action by R. A. West against Duncan McDonald. From a judgment for plaintiff, defendant appeals. Affirmed.
This is the third appeal of this case, and a full statement of the issues appears in 64 Or. 203, 127 P. 784, 128 P. 818. It is again reported in 67 Or. 551, 136 P. 650. The Farmers' Union Warehouse, desiring to have a well drilled adjacent to their warehouse, raised a fund of $150 by subscription for that purpose. This defendant, who was one of the subscribers talked with plaintiff West in regard to doing the work resulting in an agreement by which plaintiff did some drilling thereafter, and he brought this action to recover $525, the amount claimed as the reasonable value of the work done. The defendant contends that he made an agreement with the plaintiff that if plaintiff produced a well of water at any depth less than 100 feet deep, he was to be paid $1.50 a foot; and if he had to go deeper than 100 feet, he was to complete the well without additional charge over the $150. Plaintiff contends that there was no definite agreement as to the amount the well was to cost. After the case was at issue the defendant filed a second amended answer, which plaintiff moved to strike out for the reason that it was filed without obtaining leave of the court. The motion was allowed. A verdict was rendered in favor of plaintiff for the said sum of $525, from which judgment the defendant appeals.
Turner Oliver, of La Grande (Crawford & Eakin, of La Grande, on the brief), for appellant. Colon R. Eberhard, of La Grande (C. H Finn and Cochran & Eberhard, all of La Grande, on the brief) for respondent.
EAKIN J. (after stating the facts as above).
Sections 101 and 102, L. O. L., provide when an amended pleading may be filed, which may be done only by leave of the court first obtained. It is not a matter of right, but is in the discretion of the court, and it was not reversible error for the court to strike out said answer.
There is also a motion to strike out the abstract and bill of exceptions. This motion is based largely upon the contention that the bill of exceptions was not tendered or filed within the time allowed by law, and was not sent to this court with or as a part of the transcript. The law passed in 1913, Laws 1913, p. 656, making provision for the filing of the original bill of exceptions in the Supreme Court, requires it to be returned to the circuit court when no longer needed in the appellate court. This new statute does not necessarily mean that the original bill of exceptions must in every case be sent to the Supreme Court. In the rules of the Supreme Court, 56 Or. p. 620, 117 P. xi, it is provided:
"(* * * When the abstract shows issue joined, proceed * * * set out so much of the bill of exceptions, or the substance thereof, as is necessary. * * *)"
Thus, if the attorney for the appellant can print sufficient of the bill of exceptions in his abstract to fairly present the whole case, he may do so, but if he prefers he may send up the whole bill of exceptions. Laws 1913, p. 656. The abstract in this case does not refer to the bill of exceptions, or give any authority for the statements of fact, nor was the bill of exceptions contained in the transcript, but it was supplied on motion of the plaintiff.
As to the time of settling and filing the bill of exceptions, the case of Che Gong v. Stearns, 16 Or. 219, 17 P. 871, holds:
And in McElvain v. Bradshaw, 30 Or. 569, 48 P. 424, Mr. Justice Bean says:
"But whether the bill shall be settled and allowed after the time limited is a matter within the sound judicial discretion of the trial judge, the exercise of which cannot be controlled by mandamus."
When the trial judge sees fit to settle the bill of exceptions even after the time limited, this court will not disregard it. The bill in this case was so settled by the judge, and will be considered for the...
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Walker v. Fireman's Fund Ins. Co.
... ... Co., 50 Or. 527, 93 P. 465, 14 L. R. A ... (N. S.) 668. The last contention is not tenable under the ... doctrine announced in West v. McDonald, 74 Or. 421, ... 144 P. 655, Francis v. Mutual Life Ins. Co., 61 Or ... 141, 114 P. 921, and McElvain v. Bradshaw, 30 ... ...
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Gabel v. Armstrong
... ... after a demurrer is sustained should ordinarily be granted, ... but the matter rests in the discretion of the court. West ... v. McDonald, 74 Or. 421, 423, 144 P. 655. In the case ... [171 P. 191] at bar we are advised by the briefs of certain matters ... ...
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John Deere Plow Co., of Moline v. Silver Mfg. Co.
...141, 114 P. 921. In the case last mentioned there was a rule of the court very similar to the rule above cited. See, also, West v. McDonald, 74 Or. 421, 144 P. 655. whole doctrine to be derived from these cases is that, while a court is not bound to settle and approve a bill of exceptions a......
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Weinstein v. Wheeler
...496; McElvain v. Bradshaw, supra; Hayes v. Clifford, 42 Or. 568, 72 P. 1; Francis v. Mutual Life Ins. Co., 61 Or. 141, 114 P. 921; West v. McDonald, supra; Service Co. v. Peters, 116 Or. 138, 216 P. 742; and John Deere Plow Co. v. Silver Mfg. Co., 118 Or. 62, 216 P. 743, 245 P. 1083. For th......