Johnson v. Ladd , 144 Or. 268 ( 1933 )

IN BANC. Action by Anna Johnson against Thornton Ladd. From the judgment, defendant appeals. On motion to remand bill of exceptions.

MOTION DENIED. The respondent moves the court to remand the bill of exceptions on file to the circuit court "with directions to certify to this court whether Exception No. 4 and Exception No. 5 were taken by defendant and appellant at the time of the trial in the above-entitled cause, and to certify whether the record appearing upon pages 134-135 of the transcript of evidence attached to the bill of exceptions herein marked ``Exhibit A' is the true and correct record of the exceptions taken by defendant and appellant in the trial court, or whether the record of exceptions purported to be shown by said Exceptions No. 4 and 5 is a true and correct record". The trial judge has already made a certificate pertaining to the matter.

The motion is based upon the affidavit of attorney for respondent to the effect that the transcript of the official reporter is true and correct according to his memory and knowledge of the cause; that subsequent to the trial of the cause the bill of exceptions and Exhibit A were served upon counsel for respondent and that at the time of service he was very busy with other trials and had no time to carefully check the bill of exceptions to see whether the same correctly reported the proceedings in said cause, and so informed counsel for appellant, and was advised by counsel that the bill of exceptions conformed to the record and no exceptions were included therein other than those taken at the trial; therefore, no objections were made or filed to the bill of exceptions and the trial judge was so informed by counsel for respondent.

It is shown in the motion and in the transcript of testimony on page 135 that, at the close of the instructions given by the court, the court inquired of counsel: "Is there any matter the court has overlooked?" whereupon counsel for appellant stated: "We are satisfied with the instructions except the withdrawal from the jury of the first, second and third separate answers and defenses, and, of course, the refusal of the court to give any of our requested instructions."

In the bill of exceptions there are contained two exceptions to the instructions of the court, Nos. 4 and 5. Therefore, there appears to be a conflict between the bill of exceptions as settled and allowed by the judge and the transcript of the official reporter.

Objections to the form and structure of the bill of exceptions should be addressed to the trial judge, whose duty it is to settle the terms of the bill. Redsecker v. Wade, 69 Or. 153 (134 P. 5, 138 P. 485, Ann. Cas. 1916A, 269).

A statement of the testimony as set forth in the bill of exceptions, certified to by the trial judge, is binding on the Supreme Court as against a transcript of the same testimony by the official stenographer. Latourette v. Miller,67 Or. 141 (135 P. 327). See also Hoskins v. Scott, 52 Or. 271 (96 P. 1112); Weinstein v. Wheeler, 127 Or. 406 (257 P. 20,271 P. 733, 62 A.L.R. 574). The same rule must be applied to the statement of an exception contained in the bill of exceptions and certified by the trial judge, and we are bound thereby.

The signing of a bill of exceptions by the trial judge is a certification that every material statement therein preceding the signature is true, except as otherwise stated. In York v. Nash,42 Or. 321, 325 (71 P. 59), former Mr. Justice BEAN records the following language: "When, therefore, the bill of exceptions in this case was signed by the trial judge, he in effect certified as correct every material statement thereof, excepting such as might be modified by his certificate, * * *."

It is not enough to show that there is a discrepancy between the bill of exceptions and the transcript of the official reporter. As far as it appears it may be that, at a different stage of the trial or when the instructions excepted to were given, the counsel saved an exception and that this was overlooked in making the statement at the end of the trial.

We are of the opinion that the proceedings for the correction of any error in the bill of exceptions should originate in the trial court.

In Brewster v. Springer, 79 Or. 88, at page 90 (154 P. 418), we find the following: "Notwithstanding an appeal from a judgment may have been taken and perfected, jurisdiction of the cause is retained by the trial court sufficient to empower it, at any time before the appeal is heard and determined, to amend the bill of exceptions so as to make it conform to the facts." Citing numerous Oregon cases. To the same effect see State ex rel. v.Ekwall, 135 Or. 439 (296 P. 57).

We are not informed that the trial judge desires to make any correction of the bill of exceptions in the present case, and as the record now appears, giving proper effect to the bill of exceptions and also to the transcript of the official reporter, the motion to remand must be denied.

It is so ordered.