Weinstein v. Wheeler , 127 Or. 406 ( 1928 )

In Banc. 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 Nav. 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 the term: Che Gong v.Stearns, 16 Or. 219 (17 P. 871).

"The right of a trial court to limit the time for the settlement of a bill of exceptions is indispensable to the orderly administration of the law, and it is entirely proper that the appellant be required to tender his proposed bill within the time fixed, or give a sufficient excuse for not doing so. But, when a reasonable excuse is shown, the trial judge should not hesitate to settle and allow it, notwithstanding the expiration of the time. It would be a very rigorous doctrine to hold that an appellant should be deprived by circumstances over which he had no control of the benefit of the exceptions taken by him during the progress of a trial. 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, * *" McElvain v.Bradshaw, 30 Or. 569 (48 P. 464).

And "when the trial judge sees fit to settle the bill of exceptions, even after the time limited, this court will not disregard it." West v. McDonald, 74 Or. 421 (144 P. 655). That the trial judge may sign and certify to a bill of exceptions which was not tendered within the time limited by the previous orders of the court, and that it is his duty to do so whenever sufficient reason for the delay exists, and that whether or not he should sign and certify to a bill of exceptions when presented after the time allowed is within the sound judicial discretion of the trial judge, and that in the exercise of this discretion, unless there has been a clear abuse thereof his action will not be reviewed upon appeal, is settled by an overwhelming weight of authority in this state: Che Gong v. Stearns, supra; Henrichsen v. Smith, 29 Or. 475 (42 P. 486, 44 P. 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; Credit Service Co. v. Peters, 116 Or. 138 (216 P. 742); John Deere Plow Co. v. Silver Mfg. Co.,118 Or. 62 (216 P. 743, 245 P. 1083).

For the reasons stated the bill of exceptions will not be expunged and the motion will be denied.

MOTION DENIED.