Con. Freightways v. West Coast Freight , 188 Or. 117 ( 1949 )

PETITION FOR REHEARING On appellant's petition for a rehearing affirming judgment of Circuit Court of Multnomah County, D.N. Mackay, J.

The Supreme Court, Lusk, C.J., held that an amendment to the statute did not change principle that question of sufficiency of evidence cannot be raised on appeal unless it first has been raised in trial court in manner provided by the statute.

PETITION FOR REHEARING DENIED. The argument of the appellant in support of the petition for rehearing is to the following effect: The statute in effect when many of the decisions cited in our former opinion were rendered, and which stand for the necessity of objections to, or requests for, findings, in order to raise in this court the question of the sufficiency of the evidence, did not mention such objections or requests. That statute (§ 216, General Laws of Oregon 1845-1864 (Deady)) read:

"Upon the trial of an issue of fact by the court, its decision shall be given in writing and filed with the clerk during the term, or within twenty days thereafter. The decision shall state the facts found and the conclusion of law separately, without argument or reason therefor. Such decision shall be entered in the journal, and judgment entered thereon accordingly. The court may deliver any argument or reason in support of such decision, either orally or in writing, separate from the decision, and file the same with the clerk."

Specific provisions as to objections to, and requests for, findings did not come into the statute until its amendment by Ch. 165, General Laws of Oregon 1927, now § 5-502, O.C.L.A., which is set out in full in our former opinion. It is conceded that the decisions of this court, prior to 1927, support the view that the question of the sufficiency of the evidence cannot be raised on appeal unless it has first been raised in the trial court in the manner heretofore stated. It is argued, however, that the 1927 amendment changed all this because its provisions are purely permissive and do not require a party either to object to findings or to request findings. It is sought to fortify the argument by reference to the principle that, where the legislature has permitted to stand undisturbed over a period of years an interpretation of a statute by this court, an assumption of legislative approval of such interpretation may be indulged.Ryan v. State Industrial Accident Commission, 154 Or. 563, 567,568, 61 P.2d 426. From these considerations the conclusion is drawn that the legislature, by the 1927 amendment, intended to provide a different practice on appeal than that which had formerly prevailed.

We think the conclusion is a non sequitur. Since the original statute said nothing of objections to findings or requests for findings, the decisions prior to 1927 were not an interpretation of that statute. They were simply the application to a particular situation, and against the background of the statute, of a settled general rule of practice in this state, to wit: that in actions at law, whether tried to a jury or by the court without a jury, error of law, such as is assigned here, will not be considered on appeal unless it is made to appear by a bill of exceptions. This is the basis of the decisions inStroberg v. Merrill, 67 Or. 409, 135 P. 335; Taffe v. Smyth,62 Or. 227, 229, 125 P. 308, and in the other cases cited in our former opinion.

Consequently, we think that there is no merit in the suggestion that the legislature intended by the 1927 enactment to deal in any way with appellate procedure. That amendment was an implementation of the prevailing practice. Its purpose was to prescribe rules for that practice: to fix the time within which requested findings, either special or general, must be served on the opposing party, the time for presenting objections to such requested findings, and to allow time for objections to findings prepared by the court. In one sense there has never been any requirement of statute, or otherwise, that the defeated party in the Circuit Court must follow the practice of objecting to findings or requesting findings. He could always do as he liked about it. But, in another sense, if he wished to appeal and invoke this court's consideration of certain types of error, including the error assigned on this appeal, the practice is today, and always has been, compulsory: the objection must be made or the finding requested, and the adverse ruling thereon brought to this court, with the evidence, in a bill of exceptions. The 1927 amendment discloses no intention to change that practice.

The petition for rehearing will, therefore, be denied.