McQuaid v. Portland & Vancouver R. R. Co. , 19 Or. 535 ( 1890 )

Strahan, C. J.,

delivered the opinion of the court.

There being no bill of exceptions in this case, the appellant relies upon the certificate of the official reporter. On February 25, 1889, an act entitled “An act authorizing the appointment of official reporters in tbe circuit courts, and prescribing their duties and fixing their compensation,” was approved. Session Acts, 1889, pp. 142, 143, 144. Under section 2 of that act the reporter, when a full report is ordered, ‘shall cause accurate shorthand notes of the oral testimony or other proceedings to be taken.” Section 3 provides for the reporter’s compensation. Section 4, amongst other things, makes it the duty of the reporter, when shorthand notes have been taken in any case as in the act provided, if the court or either party requests a transcript of the notes, to cause a full, accurate typewritten transcript of the testimony or other proceedings, which should be certified and filed with the clerk, for the use of the court or parties. Section 5 provides, in effect, that said report and proceedings, when transcribed and certified as correct, may thereafter be read in evidence as the deposition of a witness in the cases mentioned in section 829, Hill’s Code.

These are the main features of the act on the subject presented by appellant’s counsel, and we fail to discover anything in it that gives the reporter’s notes the effect or makes it perform the office of a bill of exceptions. No doubt the object of the act was to enable the parties to put in available form the proceedings at the trial to enable them to make an accurate bill of exceptions, but it was never designed to thus make a substitute for that part of the record. If said notes could be so used, the transcript before us would be unavailable for another reason. It only purports to contain the plaintiff’s cross-examination, — not all of his evidence, — and it does not purport to contain all the evidence given upon the trial.

We may add that if the question which counsel for appellant seeks to make were before us, we could not, in the absence of controlling authority, give to the evidence of a party when on the stand as a witness the effect of an estoppel by record. He occupies in a civil case the same situation of any witness affected by like motives and interest. The effect of his evidence and his credibility are for tbe jury, and it would be going too far for tbe court to declare as a matter of law that be is bound or estopped by every statement be makes. Tbe verdict of tbe jury may have been excessive, If so, tbe court below had power to correct it by granting a new trial. That discretion is vested by law in tbe trial court, with which this court has never interfered. It presents no question for this court to review on this appeal.

We find no error in tbe record and tbe judgment appealed from must be affirmed.