Finn v. Erickson

Rehearing denied October 2, 1928.

On Petition for Rehearing.

(270 Pac. 767.)

Plaintiff has presented a very urgent petition for rehearing. He particularly challenges our statement to the effect that the bill of exceptions is not properly authenticated or certified. Our language was not accurate in stating that the document designated “Bill of Exceptions” filed April 16, 1928, was not certified. There is a certificate attached to that document sufficient in form. In the certificate, however, is a statement that the testimony together with the exhibits was annexed and marked “XX.” But no testimony is attached to this document. No exhibits are attached thereto; consequently the statement that neither the bill of exceptions nor the transcript of testimony is properly authenticated or certified is substantially correct. Neither is sufficient evidence set out in the bill of exceptions to enable the court to determine without reference to the other testimony the questions attempted to be presented to this court on the trial court’s rulings on the admission of evidence. It would be necessary for this court to examine in detail the purported transcript of testimony to determine the questions that should be presented fully in the bill of exceptions. The document designated “testimony” is not authenticated or certified by the judge who presided at the trial. This is absolutely required by the statute as heretofore construed by this court: Stark v. State Industrial Acc. Com., 103 Or. 80 (204 Pac. 151), and cases there cited.

“The clear intent of the statute is to constitute the trial judge the official and exclusive author of a bill of exceptions. He only can approve that document in its entirety and in every part. All of it must receive his sanction and that must appear from the document itself. * *

“For the reasons indicated, however, and for lack of authentication of the report of the testimony by the trial judge, the bill of exceptions in the record is not sufficient to raise the questions involved in the motions already mentioned.” Thomsen v. Giebisch, 95 Or. 118, 122, 124 (186 Pac. 10). Nealan v. Ring, 98 Or. 490, 496 (184 Pac. 275, 193 Pac. 199); Papenfus v. Lane County Credit Assn., 97 Or. 504, 505 (192 Pac. 797). The case must be considered here as if no evidence was here.

The other question s presented by the petition for rehearing were determined in the original opinion, to which we adhere. The petition does not add anything to the original brief presented by appellant. Former decision adhered to.

Rehearing Denied. Objections to Cost Bill Overruled. ■