John Deere Plow Co. v. Silver Manufacturing Co.

On the ninth day of February, 1923, final judgment was entered in the above-entitled court and cause against the defendant, the appellant here. On the eighteenth day of May, 1923, the appellant tendered to the Circuit Court a proposed bill of exceptions. The respondent appeared and objected to the signing

See 26 R.C.L. 1080. See 10 R.C.L. 1016. See 2 R.C.L. 247. of any bill of exceptions and the Circuit Court made the following order:

"The court has given consideration to the authorities cited in the argument on objections to the signing of bill of exceptions, and is of the opinion that the same should be signed. Mr. Justice BEAN, in McElvain v. Bradshaw, 30 Or. 569 (48 P. 424), laid down the rule as follows: ``But whether the bill shall be settled and allowed after the time limited is a matter within the sound judicial discretion of the trial judge.'

"And in the case of West v. McDonald, 74 Or., at page 424 (144 P. 655), the supreme court states that ``When the trial judge sees fit to settle the bill of exceptions even after the time limited this court will not disregard it. The bill in this case was so settled by the judge, and will be considered for the purpose of this appeal.'

"Counsel for the Silver Manufacturing Company gave his excuse for not having complied with the rule, and the court is of the opinion the excuse is valid and sufficient to authorize the court in exercising its discretion herein.

"The bill will be signed and dated as of May 24th."

The respondent moves to strike the bill of exceptions from the files on the ground that it does not comply with certain rules of the Circuit Court for Multnomah County, which are as follows:

"Bills of Exceptions. "Rule 49. Any party to a civil or criminal action may within thirty days after the entry of final judgment, tender a bill of exceptions.

"Rule 50. It shall not be necessary to enter an order in the Journal granting time to file a bill of exceptions unless the court, by special order, extends or shortens the time within which to file it.

"Rule 51. A copy of the proposed bill of exceptions shall be served, as copies of all papers filed in the case are required to be served by Rule 27.

"Rule 52. The adverse party must, within ten days after the service of a bill of exceptions, if the same is unsatisfactory, file a statement of objections thereto.

"Rule 53. The court, upon being satisfied that the adverse party or his attorney has had due notice thereof, may, on application of either party, grant an extension of time to file a bill of exceptions, or a statement of objections thereto, or fix a time for the settlement thereof, but written notice shall not be required."

MOTION DENIED. It is a rule which has been several times reiterated by this court that, while the right of a court to limit the time for settling a bill of exceptions is indispensable to the orderly administration of justice, the court may, in its discretion, settle and allow the bill after the expiration of such time:McElvain v. Bradshaw, 30 Or. 569 (48 P. 424); Francis v.Mutual Life Ins. Co., 61 Or. 141 (114 P. 921).

In the case last mentioned there was a rule of the court very similar to the rule above cited. See, also, West v. McDonald,74 Or. 421 (144 P. 655).

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.

The motion to strike the bill from the files is denied.

MOTION DENIED.