Student v. Goldapp

In Banc. Respondent moves to dismiss the appeal and also to strike the bill of exceptions from the record; these will be noticed in their order. It is contended that the notice of appeal fails to sufficiently describe the judgment appealed from, and also to state the name of the court to which the appeal was taken. The notice of appeal is entitled in the proper court, and contains the names of the parties to the action, the date when the judgment appealed from was rendered, and notifies the adverse party and her attorney that an appeal from said judgment was taken to the Supreme Court of this state. This conformed to the requirements of Section 550, subdivision 1, L.O.L., and was sufficient as held in Tucker v.Nuding, 92 Or. 319 (180 P. 903), and authorities there cited.

The further contention is that the appeal should have stated that it was taken to the "Supreme Court of the State of Oregon" and not as recited in the notice to the "Supreme Court of this State." In respect to this contention the notice of appeal could not have been misleading. There was but one court to which the appeal could be taken, and under the statute it would have been sufficient if the notice had merely said that the appeal was taken to the Supreme Court, without the addition of the words "of Oregon."

The further contentions that the transcript was not filed in this court in time, and that the transcript as filed was not sufficient to give this court jurisdiction of the appeal, is foreclosed by what appears on the face of the record. The motion to dismiss the appeal must therefore be overruled.

It is clear that under the ruling in Ptack v. Strong,121 Or. 688 (257 P. 19), decided June 21, 1927, the motion to expunge the bill of exceptions must be sustained. It affirmatively appears that the Circuit Court of Yamhill County has in force a rule of court which is identical in its terms to the rule which was in force in the Ptack case, and the only excuse offered for a failure to comply with the rule is that appellant's attorney did not have knowledge of the existence of the rule. Common prudence requires that attorneys trying cases in any court shall familiarize themselves with the rules of the court in which they are conducting the business of their clients. Upon their failure so to do, if the rule is couched in mandatory language and is as binding upon the court as upon the parties, we cannot hold it solely because of counsel's unfamiliarity with it, to be an unreasonable rule. The remedy, if one is needed, to avoid future injustice is for the court to make the rule directory, but that is a matter entirely within the discretion of the Circuit Court and with which we have no concern. This, however, will not result as in the Ptack case in the dismissal of the appeal, for with the bill of exceptions expunged the appellant, under the record here, may still try out the question of the sufficiency of the pleadings, the correctness of the court's rulings in denying the motion for a change of venue and in denying the motion for a new trial and possibly other questions.

The motion to expunge the bill of exceptions will be allowed.

MOTION TO DISMISS APPEAL DENIED. MOTION TO STRIKE BILL OF EXCEPTIONS ALLOWED. REHEARING DENIED.