110 P. 1090 | Or. | 1910
Lead Opinion
Opinion by
Rule 20 of the Supreme Court, as amended October 5, 1909, so far as applicable herein, is as follows:
“All motions must be filed within 10 days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction.”
The statute regulating the transfer of causes contains the following clause:
“Upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and thereafter the appellate court shall have jurisdiction of the cause, but not otherwise.” Section 553, B. «fe C. Comp.
One of the errors alleged is the refusal of the court to grant a nonsuit. The determination of that question requires a consideration of all the testimony introduced prior to the request for the special judgment. The sworn declarations of the witnesses occupy 144 pages of the printed abstract, but whether or not that volume contains all the testimony received is impossible to state, for no certificate of the judge is appended. It is unnecessary to speculate upon the sufficiency of the abstract, for it contains some of the testimony, and, as appellant’s counsel was required to set forth so much of the record as might be necessary, the quantum thereof must largely be a matter of choice, and any failure to embrace all the testimony is not a question of jurisdiction. Such being
Opinion on the Merits
Decided August 1,
rehearing denied September 12, 1911.
On the Merits.
[117 Pac. 308.]
Opinion by
By rule 13, adopted August 2, 1894 (24 Or. 601: 37 Pac. viii), provision was made for filing the abstract. .This rule was approved in Fratt v. Wilson, 30 Or. 542 (47 Pac. 706: 48 Pac. 356), but was only available upon the stipulation of counsel. Thereafter, in 1899, the legislature amended Section 541, Hill’s Ann. Laws 1892 (Section 554, L. O. L.), by which it is provided that:
“Upon the appeal being perfected, the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal.”
Until that amendment, the filing of the transcript was essential to bring the case ón appeal to this court, unless it was waived by stipulation. By authority of that amendment, rule 13 was amended on July 2, 1900, so as to make the abstract take the place of the transcript in civil cases. By rule 9, which specifies what shall be contained in the abstract, referring to the recital of proceedings on the trial, it is stated:
“Set out so much of the bill of exceptions, or the substance thereof, as is necessary to show the rulings of the court to which exceptions were taken during The progress of the trial, and which will be urged as error on the appeal, and no more.” 50 Or. 576 (91 Pac. ix).
Without determining whether Morrison had authority from Pelton to sell the land, it is clear that .he thought he had, and hé was endeavoring to sell the land to Collins, and to Sprague for the Crossett Timber Company, immediately prior to the 13th of March. Mr. Sprague testified that he had talked with Morrison about the Pelton and the Saling lands both before and after the 13th of March. He says:
“I think I saw Mr. Morrison nearly every day about that time, while we were closing the deal.”
And, although Sprague, on the 12th or 13th of March, told Mr. Franck that he would take the land, he says that
“We had some differences; I know I was very much vexed at Mr. Franck for a little time.”
The thing lingered along in an unsettled state for about a week. Sprague and Franck both reported their differences to Boothe. Again Sprague says:
“No; that afternoon [the 13th] ; but when Mr. Franck saw me I had not bought it; when I went over to Mr. Boothe’s office, it seems that Mr. Franck — I took it that he wanted to remove the objections that we had had to the closing of the deal; he wanted to let himself down a little easy, and so did it through Mr. Boothe; that is what I took it, and so I let it go at that.”
His trouble with Mr. Franck was relating to the commission and some other things.
This conflict of claims for the commission appears to have been known to Pelton, as, before closing the sale with Sprague for the Crossett Timber Company, he required from Sprague indemity against other claims for commission than those on the Franck option, so there can be no doubt that the sale could not have been completed until there was a determination of the manner of dividing the commission, and on March 13th Franck, Dobie (who had an interest in the commission for himself and Edgar), and Boothe met in the latter’s office, Boothe acting for Morrison, at which meeting, according to the testimony of Boothe and Dobie, it was agreed by all, including Franck, that the commission should be divided among them as follows: To Morrison, $2,500; to Dobie & Edgar, $5,000; and to Franck, $2,500. Franck denied that he agreed thereto; but that was a question for the jury, and they found against him thereon.
We have examined the other rulings complained of and find no error. The judgment is affirmed.
Affirmed : Rehearing Denied.