134 P. 318 | Or. | 1913
delivered the opinion of the court.
1, 2. The principal question urged for our consideration at the hearing was that the Circuit Court rendered a judgment on the day of hearing without making any findings of fact or conclusions of law, and that under the authority of Moody v. Richards, 29 Or. 262 (45 Pac. 777), and other like cases, the judgment had no foundation and was consequently void. The bill of exceptions sets out the judgment rendered on January 30,1912, and recites that “the defendant then and there excepted to the rendering and entering of said judgment, and his exception was then and there allowed.” In the typewritten bill of exceptions it is twice stated in different paragraphs that no findings of fact or conclusions of law were made or filed in the above-entitled case. There is, however, interlined in that document with pen and ink these words: “On April 23, 1912, on application of plaintiff, the court made findings of fact and conclusions of law herein and ordered that the same be entered as of date January 30, 1912, to all of which defendant then and there excepted, and an exception was then and there allowed.” The bill of exceptions was settled April 24, 1912. In this contradictory state of the record, were it not for the admission of counsel, it would be difficult for the court to determine what was really done in the proceedings connected with this case.
The defendant also appealed from the order of the court of April 23, 1912, directing findings of fact and conclusions of law to be made and filed as of the previous date, January 30, 1912. It was admitted at the argument that no findings of fact or conclusions of law were filed previous to the rendition of the judgment. Plaintiff, however, relies upon the order of April 23, 1912, as a nunc pro tunc order curing the
In the case at bar, no findings of fact or conclusions of law having been made by the court, it was not competent to afterward declare, in substance, that they had been made and to supply them by a so-called nunc pro tunc order. The function of such a proceeding is' to put upon the record a true memorial of what did indeed occur in the litigation of the case, but about which the journal of the court speaks either imperfectly or incorrectly or else is silent. It cannot properly be made the means of patching up a defective record by injecting therein something that did not occur. It may speak of that which was, but it cannot invent that which was not. It necessarily follows that the plaintiff can take nothing here by virtue of the nunc pro tunc order mentioned, and in that respect the judgment of the Circuit Court should be reversed.
3. It is contended, • however, by the plaintiff that, inasmuch as the report of the testimony taken in the trial of the case below is all before us, we must necessarily take up the matter, consider all the evidence, try the case de novo on the facts, and render a judg
In Taffe v. Smyth, 62 Or. 227 (125 Pac. 308), the complaint contained seven separate causes of action, all contested by the defendant. The issues were heard before the court without a jury, and by some inadvertence the judge neglected to make findings on the fifth cause of action. The question was not complicated, the testimony was plain, and in an opinion by Mr. Justice Moore this court held that it had the power- and exercised it under Article VII, Section 3, of our Constitution, to make a finding upon the omitted count.
In State v. Rader, 62 Or. 37 (124 Pac. 195), the court had before it all the testimony reported in the case, and, construing the same section, it was said by Mr. Justice McBride that: “If the evidence were clear and without contradiction, we would ourselves try out the case here as we have a right to do under our amended Constitution, but it is wholly circumstantial, and the facts can be much better determined by a jury of the vicinage than by us.” The judgment was reversed and the cause remanded to the court below for a new trial there.
In the case of Witt v. Campbell-Lakin Segar Co., ante, p. 144 (134 Pac. 316), decided by this court July 22, 1913, ’the action was upon a promissory note, the execution of which was admitted by the defendant. A counterclaim was interposed to the effect that the note was given in payment for some cigars to a company of which the plaintiff was president; that the goods proved to be defective, to the damage of the defendant more than the amount of the note; and that the plaintiff took the note with knowledge of the transaction out of which it arose. The case was heard before the Circuit Court and decided there in favor of
The constitutional provision involved reads thus in part: “Until otherwise provided by law, upon appeal of any case to the Supreme Court, either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal. If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court # * Article VII, Section 3, of the Constitution, as amended November 8, 1910 (see Caws 1911, P-7).
The language of the amended organic act j.s not mandatory on this point but permissive only. The rendition of a final judgment upon the facts in this court depends upon whether we shall be of the opinion that we can determine - what judgment should have been entered in the court below, plainly leaving it to the discretion of the court in such cases. Hence no one can insist, as a matter of right, that we shall in all cases in actions at law render a final decision upon
The judgment is reversed and the cause remanded for a new trial. Reversed.
