West v. McDonald ( 1914 )

Mr. Justice Eakin

delivered the opinion of the court.

1. Sections 101 and 102, L. O. L., provide when an amended pleading may he 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.

2, 3. 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. The 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. 620 (117 Pac. 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 Pac. 871), holds:

“No time is fixed by any statute in this state within which a circuit judge may sign a bill of exceptions or denying his rigEt to sign it after the term.”

And in McElvain v. Bradshaw, 30 Or. 569 (48 Pac. 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 purposes of this appeal.

4. Exception was also taken to the admission of testimony as to the drilling of wells in other parts of the county. This testimony was too remote to be material, and does not appear to have been prejudicial.

5. Assignment of error No. 10, relating to the expert testimony of J. H. Lewis, a well-digger from Colorado, is without merit, for the reason that it was not shown that he was qualified as an expert, having drilled no wells in Oregon; also, because of the fact that he was only asked as to drilling in quicksand and through clay, as to buckets used in the quicksand, and as to the use of other tools, which called for general facts and not particular results in Oregon.

On the second appeal of this case the court held:

“The question turns upon the definition of the term ‘well,’ as applied to the contention of each party. If the plaintiff was not responsible for the results of the excavation, it can be said properly that a well meant nothing more than a mere hole in the ground, for the services in digging which the plaintiff would be entitled to recover on the quantum meruit, in the absence of an express agreement. * * The [trial] judge defined it once and for all in his instruction relative to the defendant’s side of the case. It was'not intended to be conclusive upon the plaintiff, and a fair construction of the charge will not justify such a construction.”

The jury made some special findings suggested .by certain questions submitted to them, as follows:

“ (1) Did the defendant employ the plaintiff simply to sink a hole in the ground regardless of finding water, or did the plaintiff agree to drill until he did strike water?

“A. The defendant expected to get water, and the plaintiff did not agree to get water.

“ (2) Did the plaintiff strike a good flow of water?

“A. No. * *

“ (3) If the plaintiff did strike a good flow of water did he case off the flow of water?

“A. No.

“(4) Did the defendant notify the plaintiff to continue drilling after the plaintiff had sunk the well or hole in the ground 100 feet?

“A. Yes.

“ (5) Did the plaintiff agree to sink the well or the hole in the ground for the amount raised by subscription?

“A. No.”

The answers to these questions seem to disclose that the jury well understood the first instruction given by the court, and clearly indicate that they found the contract between plaintiff and defendant was not the one alleged by defendant; that the plaintiff did not find a flow of water before reaching 100 feet, as indicated by question 2, and that the plaintiff did not agree to sink below 100 feet at his own expense. These special verdicts indicate that the jury recognized the issues between plaintiff and defendant, and found against the defendant as to what was contracted, and that the plaintiff did not understand that he was to drill below 100 feet at his own expense. These answers convince us that the jury understood the issues and found on all of them, and the verdict should not be disturbed.

The judgment is affirmed.

Affirmed. Rehearing Denied.