Darling-Singer Lumber Co. v. Oriental Navigation Co.

In Banc. The rules of the Circuit Court for Multnomah County provide:

"Rule 36. Any party to a civil or criminal action may within thirty days after the entry of final judgment tender a bill of exceptions.

"Rule 37. It shall not be necessary to enter an order in the Journal granting time in which to tender a bill of exceptions unless the Court by special order extends or shortens the time within which to tender same."

The bill of exceptions herein after having been settled and allowed by the trial judge was filed in this court and among other things it recites that it was not tendered within the time provided for by the rules, or any extension thereof. Upon that ground alone respondent moves to expunge the same from the record here. Upon this question there has been a conflict of decision in this state. In Che Gong v. Stearns, 16 Or. 219 (17 P. 871), it was held that:

"No time is fixed by any statute in this State within which a circuit judge may sign a bill of exceptions, or denying his right to sign it after the term. Hill's Code, section 231, provides: ``The point of the exception shall be particularly stated, and may be delivered in writing to the judge, or entered in his minutes, and at the time or afterwards be corrected until made conformable to the truth'; and section 233 provides: ``The statement of the exception when settled and allowed shall be signed by the judge and filed with the clerk, and thereafter it shall be deemed and taken to be a part of the record of the cause." * * No doubt the better rule of practice is to have the bill of exceptions signed and filed during the term at which the judgment is rendered, or such further time as may be allowed by order for that purpose; but in a mere matter of practice which may be affected by circumstances that cannot be foreseen, I am unwilling to lay down an unbending inflexible rule which shall tie the hands of the circuit judges and prevent them from completing the record in cases tried before them, if not done during the term or within some time to be fixed by order. It is a power that pertains to the records of the Circuit Courts, and I think its exercise may be safely left to the sound judicial discretion of the circuit judges. In their hands it is not likely to be abused, but will be used in furtherance of justice. A party has a right of appeal, to be exercised in a civil case within six months after the judgment, and in a criminal case within one year thereafter. If during the trial he took exceptions which were reduced to writing, or noted on the judge's minutes, and for any satisfactory cause was unable to have his bill of exceptions drawn out in form and signed during the term, there can be no doubt that the judge who presided at the trial has the power to sign the same afterwards, and it becomes a part of the record with the same effect as if signed during the term."

There was no rule of court involved in that decision and in that case a writ of mandamus was issued directing the circuit judge to sign and certify to the bill of exceptions, although more than six months had elapsed after the entry of judgment and before the bill of exceptions had been tendered, and so far as the decision shows there was no extension of time granted.

As a basis for the conclusion reached in that case Mr. Justice STRAHAN among other things said:

"* * So in considering the effect of a provision in the Code of California requiring a bill of exceptions to be made within ten days after the trial, the Supreme Court of that State said: ``We think that the statute directing a statement to be made within ten days, and signed by the judge in a criminal case, is directory merely. The phraseology is different from that of the practice act in reference to like provisions in civil cases, and the reason of the rule is likewise different. It would be holding the rule with great rigor to hold a prisoner absolutely precluded of his rights by the failure of the judge to settle or sign a statement within a limited time.' (People v.Woppner, 14 Cal. 437.) And the same principle is announced inPeople v. Lee, 14 Cal. 510.

"In People v. White, 34 Cal. 183, the bill of exceptions was not settled and allowed until nearly a year after the trial, and the attorney-general suggested that the same should be disregarded; but the court refused to act upon this suggestion and said: ``Why there was so long delay does not appear; but it is settled that the statute in relation to the time within which bills of exceptions should be tendered and settled is directory (Crim. Prac. Act, § 435), and that this court will not inquire into the reasons which induced the judge below to sign them after the time fixed by the statute, but will presume they were sufficient.' A similar statute in the State of Nevada has received the same construction." (State v. Salge, 1 Nev. 455;State v. Baker, 8 Nev. 141.)

In Henrichsen v. Smith, 29 Or. 475 (42 P. 486, 44 P. 496), this court said: "Nor could the failure of the defendants to submit their bill of exceptions within the time limited defeat the right to vacate the judgment or exhaust the power of the judge thereafter to sign the bill of exceptions." Again, inMcElvain v. Bradshaw, 30 Or. 569 (48 P. 424), this court speaking through Mr. Justice BEAN said:

"Our statute does not prescribe the time in which a bill of exceptions shall be presented for settlement and allowance, and in practice it is permitted after the expiration of the term at which the trial is had; but obviously it should be done whilst the evidence and rulings of the court are fresh within the recollection of the trial court and counsel, and, therefore, it is eminently proper that it be settled either during the term or within some definite time thereafter: 3 Enc. Pl. Pr. 468. But, while this is so, an order to that effect is not conclusive, but the trial judge may disregard it, and sign the bill after the expiration of the time allowed (3 Enc. Pl. Pr. 462; Marye v. Strouse, 5 Fed. 494; Coe v. Morgan, 13 Fed. 844); and if he does so, we will not inquire into the reasons which may have induced the act, but will presume they were sufficient.

"The right of a trial court to limit the time for the settlement of a bill of exceptions is indispensable to the orderly administration of the law, and it is entirely proper that the appellant be required to tender his proposed bill within the time fixed, or give a sufficient excuse for not doing so. But, when a reasonable excuse is shown, the trial judge should not hesitate to settle and allow it, notwithstanding the expiration of the time."

In State ex rel. v. Estes, 34 Or. 196 (51 P. 77, 52 P. 571, 55 P. 25), in respect to the power of the Circuit Court to amend or change a bill of exceptions after it has been settled and allowed to make it conform to the facts, this court said:

"If, however, a bill of exceptions, through inadvertence or mistake, has been so made up as not to fairly and truly recite or represent what it purports to show as having actually transpired during the course of the proceedings, it may, by order of the court entered nunc pro tunc, upon proper notice, be so amended at a subsequent term as that it will accord with the real facts": Citing authorities. "And this may be done pending an appeal." Citing additional authorities.

In Weinstein v. Wheeler, 127 Or. 406 (257 P. 20), decided June 21, 1927, it was held:

"That the trial court may sign and certify to a bill of exceptions which was not tendered within the time limited by the previous orders of the court, and that it is his duty to do so whenever sufficient reason for the delay exists, and that whether or not he should sign and certify to a bill of exceptions when presented after the time allowed is within the sound judicial discretion of the trial judge, and that in the exercise of this discretion, unless there has been a clear abuse thereof his action will not be reviewed upon appeal, is settled by an overwhelming weight of authority in this state." Citing authorities.

In Oxman v. Baker County, 115 Or. 436 (234 P. 799,236 P. 1040), on motion to strike the bill of exceptions because not tendered for settlement within the time limited by the established rules of the trial court, the motion was sustained upon the ground that, "Where a court has established rules for its government and that of suitors, there exists no discretion in the court to dispense at pleasure with their rules, or to innovate on established practice," citing among other casesCoyote etc. Co. v. Ruble, 9 Or. 121, and Schnitzer v.Stein, 96 Or. 343 (189 P. 984).

The rule of court under consideration was a mandatory rule which left no discretion where there had been a violation thereof in the trial court and the principle announced, and followed in that case under the facts as they there existed was correctly stated by the court. But in this case the rule is not mandatory; it is directory merely and leaves the power in the court to exercise a reasonable discretion in a proper case. The distinction between a mandatory rule and one which is directory merely is as well recognized as the distinction between a mandatory and a directory statute. If the statute is mandatory or if the rule of court is not unreasonable or in conflict with some rule of law, and is mandatory and limits the power of the court as well as of the parties to the litigation, its provisions must be complied with and acts done in noncompliance therewith are void. But if a statute or rule is directory merely, it does not render the doing of the prescribed act at a different time or in a different manner void. The rule in question is directory merely, and this or a similar rule identical in terms and meaning has been twice construed by this court where it was held that a bill of exceptions tendered after the time provided for in the rule had expired and then settled and filed here was sufficient.

In Francis v. Mutual Life Ins. Co., 61 Or. 141, 144 (114 P. 921, 922), this court said:

"The effect of the rule in declaring that any party to a civil or criminal action may within thirty days prepare and file a bill of exceptions is to obviate the necessity of making an order in each particular case prescribing the time within which the bill shall be presented. The restriction is applied only to the parties. Under this rule the trial court in its discretion might say to the party, ``You have not availed yourself of the time allowed by the standing rule,' and so deny the application for an extension. On the other hand, the court might, without a showing, extend the time, without any abuse of its prerogative. The rule does not amount to an abdication in any degree of the power of the court in that respect. On the contrary, the last paragraph of the rule expressly reserves to the court the discretion of allowing the extension of time to file a bill of exceptions. It is not stated in the rule that the application for such extension must be made within the thirty days first mentioned."

In John Deere Plow Co. v. Silver Mfg. Co., 118 Or. 62 (216 P. 743, 245 P. 1083), this court again said:

"The whole doctrine to be derived from these cases is that, while a court is not bound to settle and approve a bill of exceptions after the time specified in the rule or granted by the court, it may do so if in its judgment the excuse presented for noncompliance with the rule is sufficient."

Under these decisions where the rule limiting the time for tendering a bill of exceptions is directory merely, it is clear that the trial judge after the time limited by the rule has expired has power to sign and settle the bill of exceptions, and that if he does so this court will not inquire into his reasons for so doing, and from this it follows that the motion must be overruled. MOTION OVERRULED.