22 Or. 497 | Or. | 1892
This is an action to recover from the defendant seven hundred and ten dollars for certain stock alleged to have been killed by its trains, and for damages caused by fires alleged to have originated from sparks escaping from its engines. The complaint contains six separate causes of action, three of which are for stock killed, and the remaining three for damages done by fire. At the close of the plaintiff’s testimony, the defendant moved for a nonsuit as to all the causes of action; and its motion was granted as to the sixth cause of action, and denied as to each of the others. The jury found a verdict in favor of plaintiff for six hundred and ninety-three dollars and fifty cents, upon which judgment was entered, and the defendant appeals.
As appears from the brief of counsel for appellant, the errors relied on here, are, in overruling a motion for non-suit; in the admission of a certain letter in evidence, and the giving of a certain instruction to the jury. These assignments of error are claimed to be presented by what counsel terms a bill of exceptions, but which is nothing more or less than the whole testimony and proceedings of the trial as it took place extended from the stenographer’s notes. The testimony alone covers more than one hundred pages of type-written matter, the large proportion of which
In Janeway v. Holston, 19 Or. 98, Strahan, J., in speaking of a similar bill of exceptions, says: “The reporter’s notes contain ample material from which a bill of exceptions might have been constructed; but the wildest liberty in the use of language cannot torture this writing into one. Section 230, Hill’s Code, defines an exception, and section 231 points out the method of making the same a part of the record, so as to present a question for review in this court; and we have several times endeavored to point out the necessity of observing these provisions of the code in the preparation of a case on appeal. If these provisions of law be utterly disregarded, there is nothing presented which we can properly examine.” And in Fiore v. Ladd, ante, 202, the court, in speaking of the practice of making a part of the bill'of exceptions all the evidence given on the trial
The provisions of our statute introduce no new rule in this matter, but are merely declaratory of the law as it already existed. In Pennock v. Dialogue, 2 Pet. 15, Mr. Justice Story condemns the irregularity, inconvenience, and expense of putting the entire evidence of a case into the bill of exceptions, and expressed the regret of the court that such a practice should prevail. In Zeller v. Eckert, 4 How. 297, Mr. Justice Nelson said: “This mode of making up the error books is exceedingly inconvenient and embarrassing to the court, and is a departure from familiar and established practice. Only so much of the evidence given on the trial as may be necessary to present the legal questions thus raised and noted, should be carried into the bill of exceptions. All beyond, serves only to encumber and confuse the record and to perplex and embarrass both court and counsel.” In Johnston v. Jones, 1 Black, 220, Mr. Justice Swayne, in speaking of this practice, said: “The court desires to put on record again its condemnation of this irregularity, and to express the hope that a better practice may prevail hereafter in all cases intended to be brought before this court for revision.” Again, in Lincoln v. Claflin, 7 Wall. 136, Mr. Justice Field, in delivering the opinion of the court, uses this language: “A bill of exceptions should only present the rulings of the court upon some matter of law, as upon the admission or exclusion of evidence, and should contain only so much of the testimony, or such a statement of the proofs made or offered, as may be necessary to explain the bearings of the rulings upon the issues involved. If the facts upon which the rulings were made
The object of a bill of exceptions is to bring into the record the particular matter excepted to, and which the record would otherwise not disclose. It should, therefore, be drawn up concisely, but as explicitly as possible, with a view to stating all the facts and circumstances necessary to the statement of the point of law intended to be raised. (State v. Brake, 11 Or. 396; Powers, App. Pro. 225; Green, Pleading & Practice, § 1140.) The object is to present the naked legal question; and only such facts as are necessary to explain its relevancy to the particular case should be stated. With such a record, it is only necessary for this court to consider and determine the question of law presented, and not be compelled to labor through a voluminous record to ascertain the facts upon which the question is based, and having done so, to be met with a petition for rehearing, as is not unfrequently the case, in which the legal conclusions are not controverted, but “respectfully but earnestly insisting that the court is mistaken as to the facts.” If counsel desire the entire proceedings of the trial to be made a part of the record, there perhaps can be no objection; but ordinarily it should be attached to and made a part of the bill of exceptions as an exhibit, or in some other appropriate way, and not massed together, entitled a bill of exceptions, and certified here for us to examine, and ascertain whether the trial court erred. Cases may and
This case is an apt illustration of the vice of such a practice. In support of the motion for a nonsuit, it is contended that no evidence was introduced on the trial tending to prove ownership or operation by the defendant of the railroad mentioned in the complaint, or the engines or cars used thereon. In place of this point being stated, with only the facts or evidence bearing upon it, if any, and if not, a statement to that effect, the record contains, embodied in the bill of exceptions, the whole of the evidence as given at the trial upon all the issues, including not
The objection urged to the instruction Is that "it omitted any reference to the contributory negligence of the plaintiff, or his servants, as to the fire mentioned in the fifth cause of action, as clearly shown to exist by the evidence.” Here, again, the facts, if any, tending to show contributory negligence, are not stated, nor is the evidence upon this question separated or segregated from the mass of testimony, but we are expected to hunt through the entire record of a long and protracted trial to see whether there is any such evidence. So also in relation to the letter of Mr. Smith, admitted in evidence, the objections are, (1) it does not relate to the fire mentioned in the complaint; (2) there is no evidence that Smith was an agent of the defendant; and (3) if he was an agent of the defendant) there is no evidence that he was authorized to make the admission said to be contained in the letter.
It will thus be observed that all the questions sought to be presented on this appeal depend largely upon questions of fact, or inferences to be drawn from certain portions of the testimony. The point of each exception should have been particularly stated, complete within itself, accompanied with so much of the evidence or other matter, necessary to explain it, and no more, and not all thrown together in one indiscriminate mass, as was done in this case. We conclude, therefore, that the bill of exceptions presents no question for our consideration, and the judgment must be affirmed.
We reach this conclusion with less reluctance, because no substantial injustice seems to have been done the defendant in the trial; and objection was taken in the court below to the form of the bill of exceptions, and a protest there made by plaintiff’s counsel to its allowance by the trial judge in the form presented.