Ohlson v. Steinhauser ( 1959 )

PER CURIAM.

The respondent has moved to strike from the bill of exceptions a number of so-called exhibits, copies of which are attached to the bill, with the recital that both parties offered them “prior to the original hearing and prior to the rehearing, and again that they were tendered by defendant in conjunction with a motion for rehearing and objections to the proposed preliminary statement.” The ground of the motion as to some of these exhibits is that they are affidavits made subsequent to the trial of the cause; as to others, that they were not offered in evidence at the trial; as to still others, that they are copies of exhibits received in evidence.

We deny the motion for the sole reason that the judge has certified these papers as a part of the bill of exceptions. This does not mean that we are committed to consider any or all of them when the case is submitted on the merits. That question will then be determined.

The bill of exceptions seems to indicate either a misunderstanding of the statutes, rules and decisions regarding the contents of a bill of exceptions or indifference to their requirements. With particular reference to the instrument now before us it should be pointed out that the bill of exceptions is not supposed to comprise either in whole or in part a history of the litigation from the filing of the complaint to the entry of judgment, nor an ex post facto statement of the appellant’s reasons for thinking the judgment to be wrong.

It is still true, notwithstanding the amendment of 1913 (Oregon Laws 1913, ch 332; ORS 19.100 (2)) authorizing the use of a transcript of the whole testimony and all of the proceedings had at the trial as a bill of exceptions, that the purpose of the bill is to bring into the record rulings of the trial court and exceptions thereto that otherwise would not be a part of the record. ORS 19.100 (3). Matters extraneous to that purpose have no place in a bill of exceptions. A bill of exceptions is still “a memorial of matters occurring at the trial of a cause which do not otherwise appear of record.” Kubik v. Davis, 76 Or 501, 503, 147 P 552. Included, of course, in the foregoing statement is the rule that affidavits filed before or after trial, material to the consideration of some ruling of the trial court which this court is authorized to review, must be made a part of the record through the medium of a bill. of exceptions. State v. Reyes, 209 Or 595, 303 P2d 519, 521, and cases there cited.

Such affidavits—not copies of them—should be incorporated in the bill of exceptions by appropriate reference in the certificate of the judge. There is no law which authorizes the inclusion in the bill of copies of documents, such, for example, as letters, the originals of which were marked for identification and offered in evidence on the trial and are in the custody of the clerk. It is the original papers with the signatures thereon, if any, which must be made a part of the record, for it is they alone upon which the court ruled in determining whether they should be admitted in evidence or rejected, and they alone which the court could consider in deciding the case.

Motion denied.