165 P. 673 | Or. | 1917
delivered the opinion of the court.
It has been expressly held that this court will not consider the sufficiency of the evidence to justify the verdict in the absence of some action in the Circuit Court raising and reserving the question: Shmit v. Day, 27 Or. 110, 116 (39 Pac. 870); Nunn v. Bird, 36 Or. 515, 520 (59 Pac. 808). A different rule would be unjust to the adverse party and unfair to the trial court. It often happens that the evidence is insufficient in some respect which can be readily supplied. In such case it is within the discretion of the trial court to open up the case and receive the missing evidence. A litigant should not be denied the benefit of such procedure by a rule which permits an appellant to contend in this court for the first time that the evidence of his adversary is insufficient to support a verdict.
It is contended that the above rule has been modified by the amendment to Article VII of the Constitution, adopted in 1910 (Laws 1911, p. 7). Section 3 of the amended article authorizes this court to modify a judgment in certain cases, but it does not abrogate the salutary rule of appellate procedure hereinbefore set out.