McCarty v. HEDGES , 212 Or. 497 ( 1958 )

KESTER, J.

This is an action for damages for personal injuries in which plaintiff recovered a judgment against both defendants. Each defendant separately has appealed from the judgment. Defendant Hedges has filed his combined abstract and opening brief, and plaintiff now moves to strike that brief on the ground that it contains only immaterial matters in that there is no bill of exceptions before the court, and that the brief does not contain page references to the bill of exceptions as required by Rule 16 of the rules of this court.

The record shows that the judgment was signed September 21, 1956, and docketed September 24, 1956, and both notices of appeal were filed November 20, 1956. Defendant Brohlin’s undertaking was filed November 20, and his appeal became perfected on November 25, 1956 (ORS 19.030-4). Defendant Hedges’ undertaking was filed November 30, and his appeal became perfected December 5,1956. Defendant Hedges filed his short transcript with this court on December 21, 1956, which was within the statutory thirty days from perfecting his appeal (ORS 19.070). Defendant Brohlin obtained an extension of time from the trial court until February 12, 1957, to file his short transcript, and filed it with this court on February 8, 1957, with the judgment roll and with the bill of exceptions hereinafter mentioned.

Defendant Brohlin obtained successive extensions of time from the trial court for tendering a bill of exceptions until January 28, 1957. On January 22, 1957, the trial court signed, and on January 24, 1957, there was filed with the clerk of the trial court, a bill of exceptions which had been tendered by defendant Brohlin, and which incorporated by reference the full transcript of testimony in two volumes, marked Exhibits “A” and “B.” The bill of exceptions, including Exhibits “A” and “B,” bears an acceptance of service by plaintiff’s attorneys dated January 14, 1957.

In the meantime, defendant Hedges on December 22, 1956, filed with the Supreme Court a motion for an extension of time to file a bill of exceptions. This motion was opposed by plaintiff on the ground that the sixty-day period for tendering a bill of exceptions had already expired, and that no application for extension had been made within that period. Not being advised of the extension already granted in the circuit court, this court on January 4, 1957, denied the motion of defendant Hedges.

Respondent’s present motion is seemingly based upon the premise that each appellant must tender and have settled a separate bill of exceptions. No other basis for the motion appears, as appellant Hedges’ brief does make page references to the transcript of testimony which is incorporated in the bill of exceptions submitted by appellant Brohlin. This premise is incorrect, however, as our practice does not contemplate more than one bill of exceptions in a given case, at least where the one bill of exceptions includes all the testimony and proceedings had at the trial.

The hill of exceptions is a means (and the only-means) of bringing to this conrt the proceedings in the trial conrt which do not otherwise appear in the judgment roll. Tellkamp v. McIlvaine, 184 Or 474, 199 P2d 246; State v. Reyes, 209 Or 595, 303 P2d 519. When signed by the trial judge and filed with the clerk, it “shall be deemed to be a part of the record of the cause” (ORS 19.100-3). It becomes a part of the judgment roll (ORS 18.330-2), and when sent to this court it becomes a part of the transcript on appeal (ORS 19.090). Accordingly when a bill of exceptions is here, it is here for all purposes; and when it includes the entire transcript of testimony and all the proceedings, either appellant may refer to it.

If only a short form bill of exceptions is used, as was the practice prior to the 1913 amendment of ORS 19.100, and is still permissible, and in many instances desirable (Johnston v. Lindsay, 206 Or 243, 245, 292 P2d 495), then a separate appellant may find it necessary to submit a separate bill of exceptions with the portion of the proceedings necessary to raise the points on which he intends to rely. See Copper R. & N. Ry. v. Reeder, 211 P 280, 285 (construing the Alaska Code, which was taken from the Oregon Code.)

But when one bill of exceptions has been settled which includes all the testimony and proceedings had at the trial, there is no need for each appellant to submit a duplicate bill of exceptions. See 4 CJS 1304, Appeal and Error § 817.

The motion is denied.