Senner v. Danewolf , 139 Or. 93 ( 1932 )

I regret that I cannot subscribe to the majority opinion in this case. Believing as I do that said opinion in effect nullifies the intention of the legislature in amending Or. L., § 171, General Laws, 1929, chapter 356, I believe it to be my duty to express the reasons for my dissent.

The legislature must have had some intention, some direct purpose when it enacted said chapter 356. Prior to the enactment of that chapter the time for certifying a bill of exceptions rested in the discretion of the trial judge: Weinstein v.Wheeler, 127 Or. 406 (257 P. 20, 62 A.L.R. 574); Vawter v.Rogue River Valley Can. Co., 124 Or. 94 (257 P. 23, 262 P. 851);Walker v. Fireman's Fund Insurance Co., 122 Or. 179 (257 P. 701); Sitton v. Goodwin, 119 Or. 74 (248 P. 163). When the circuit court had adopted rules governing the presentation of bills of exceptions the judge of the court was bound by such rules: Oxman v. Baker County, 115 Or. 436, 439 (234 P. 799,236 P. 1040).

Oregon Code 1930, § 2-703, General Laws, 1929, chapter 356, was enacted for the purpose of making uniform throughout the state the time in which bills of exceptions should be presented as a matter of right. The desired uniformity would be absolutely prevented by the majority opinion. In the instant case the judgment was entered on the 23d day of April, 1930. Time in which to present the bill of exceptions under said section 2-703 expired on the 22d day of June. An order extending the time for filing said bill of exceptions was not made until the 15th day of July, twenty-two days after the time had expired. The order extending the time was made without notice to respondent and without any showing of a reason therefor.

In another case pending in this court at this time a bill of exceptions was not signed until almost a year after the judgment was rendered and entered. The mischief intended to be remedied by the enactment of said chapter 356 is not accomplished if the construction placed thereon by the majority opinion obtains. The two pending cases referred to demonstrate that the statute will, under the majority opinion, encourage confusion rather than make for uniformity. The successful party in the trial court is ignored. A different question would be presented if such opposing party had notice of an application for extension of time or consented thereto.

"Where the time for filing bills of exceptions is limited by statute, they are void if filed beyond the expiration of the statutory time, — at least unless the right to have them filed within the prescribed time is waived by the adverse party." Thompson on Trials (2d Ed.), 2073, § 2814.

"It is competent for the parties to stipulate that the bill of exceptions may be filed on or before a given date after the expiration of the term." 2 Thompson on Trials, (2d Ed.), 2073, § 2813.

Some courts hold that an order extending time will not be made on such stipulations. Note 39 to said section 2813. See also id. 2074, section 2815. Neither waiver nor consent is involved in the instant case.

The certificate of the trial judge to the bill of exceptions is regular. No presumption should be indulged where such presumption would contradict the record: Western Savings Co. v. Currey,39 Or. 407, 413 (65 P. 360, 87 Am. St. Rep. 660), where is written:

"The presumption has application where there is nothing to show what has been done, but here it is perfectly patent that the clerk has not done that which the law has required of him."

The record in the case at bar discloses affirmatively what actions were taken. There is, therefore, no occasion to invoke presumptions. The record here without ambiguity states the order extending the time was made on motion of the appellants and defendants. They are the same parties. There is no foundation, then, for the presumption that such extension of time was made with the consent of respondent. The language of the certificate to the effect that the bill of exceptions was presented within the time cannot overrule the record, which clearly shows that the order attempting to extend the time was made after the time had expired. An order to be of any effect or force extending time must be made within the period when the act should be done.

As it is well said in the case of State v. Scott, 113 Mo. 559 (20 S.W. 1076), cited with approval in Oxman v. Baker County, above, the word "``extended', as employed in the statute, means ``prolonged', and of course a prolongation of time cannot occur after the time originally limited has expired." In order to extend the period such order must be made within the period to be extended. Only in this manner can the statute accomplish the principal purpose for which it was enacted.

The construction placed upon the act by the majority opinion leaves the procedure for certifying a bill of exceptions as it was before the 1929 amendment except that it makes delay. No rule of the circuit court for fixing the time for filing a bill of exceptions prescribed a longer period after judgment than thirty days, so far as I have been able to learn. An examination of the rules of a number of the different circuit courts in this state reveals no case in which more than thirty days was allowed in which to file a bill of exceptions. The statute permits sixty days after judgment to present a bill of exceptions.

The most general complaint in this state about the courts, both in the circuit courts and in the supreme court, has been delay in trying cases. The only effect of the 1929 amendment, General Laws, chapter 356, as construed by the majority opinion is to make more delay. Under the present practice of taking evidence in the circuit courts in shorthand and extending stenographic notes to aid in preparing bills of exceptions the legislative assembly recognized that thirty days would be too short a time in many cases. It, therefore, extended the time to sixty days in order to make the provision about time for presenting bills of exceptions uniform throughout the state. That purpose, I repeat, will not be accomplished and cannot be by the construction placed upon the statute by the majority opinion.

The motion to strike the bill of exceptions should be allowed.