Francis v. Mutual Life Ins.

114 P. 921 | Or. | 1911

Opinion

Per Curiam.

1. The syllogism of the respondent in support of this motion consists of the major premise that a rule of practice established by a court has the same force and effect as law and of a minor premise that this bill of exceptions was not presented within the term prescribed by the rule, from which the conclusion sought to be deduced is that the bill should be stricken out. The major premise may well be conceded. The statute relating to the transaction of business in the circuit court of the Fourth judicial district prescribes that “the judges of said court, or a majority of them, shall jointly have power to make all needful rules and regulations, not inconsistent with law, to render effectual the provisions of this section and facilitate the transaction of business.” Section 913, L. O. L. This statute is but declaratory of the power inherent in all courts of record to establish rules relating to the disposition of business before such courts, and it is settled by the case of Coyote G. & S. M. Co. v. Ruble, 9 Or. 121, that such rules have the force and effect of law, and are obligatory upon the court making them, as well as upon suitors.

2. The question, then, is remitted under the minor premsie to a construction of rule 19. The Code itself does not prescribe any particular time within which a bill of exceptions may be presented for settlement, and in the absence of any rule on that subject the course of authority is uniform in this State that it is discretionary with the court whether or not it shall settle a bill of exceptions at any time after the trial. Hayes v. Clifford, 42 Or. 568 (72 Pac. 1). The effect of the rule in declaring that any party to a civil or criminal action may within 30 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 30 days first mentioned. The minor premise of the syllogism is not sustained by a fair construction of the rule.

We cannot say, therefore, that the court has abused its authority, and in the absence of any showing on that subject, aside from the application of the rule, the motion to strike out the bill of exceptions must be denied.

Motion Denied.