| Or. | Oct 14, 1919
Lead Opinion
This is a motion to dismiss an appeal. The judgment was entered March 13, 1919. The notice of appeal was filed May 13, 1919. Section 550, L. O. L., as amended by subdivision 5, Chapter 319, Gen. Laws 1913, provides in substance that an appeal, if not taken in open court at the time of the rendition of the judgment or decree, shall be taken by serving and filing the notice of appeal within sixty days from the entry of the judgment or decree appealed from. Section 531, L. O. L., provides, among other matters, that—
‘ ‘ The time within which an act is to be done, as provided in this Code, shall be computed by excluding the first day and including the last, unless the last day fall upon Sunday, Christmas, or other nonjudicial day, in which case the last day shall also be excluded.”
Respondent contends that by virtue of these provisions, the thirteenth day of March should be excluded and the 14th included, which method of computation would cause the filing of the notice herein to fall upon the sixty-first day after the entry of judgment, or one day too late. Appellant claims that the 14th should be excluded, which method of computation would allow the whole of the thirteenth day of May for filing the notice, which would consequently be .within sixty days.
The motion is overruled. Overruled.
Affirmed Oetober 6, 1920.
On the Merits.
(193 Pac. 199.)
Department 1.
Substantially, this is a suit in which the plaintiff, claiming to be the owner of certain lands in Linn County upon which there is standing a large quantity of merchantable timber, sues to enjoin the defendant from a continuance of a trespass, and from cutting any of the timber. The answer denies the plaintiff’s ownership of the land, and in fact traverses the whole complaint, except that there is standing timber upon the premises, and that the defendant went upon the land and began to cut the timber. The answer further alleges a contract with the plaintiff through his agent, P. J. Nealan, whereby the defendant was to go upon the land, cut the timber thereon, and pay for it at the rate of one dollar per thousand feet, board measure. This, in turn, is denied by the reply. A
After a trial before it, the Circuit Court denied the prayer of the complaint and dismissed the suit, and the plaintiff appeals. Affirmed.
For appellant there was a brief over the names of Mr. Walter G. Winslow and Mr. V. A. Goode, with an oral argument by Mr. Winslow.
For respondent there was a brief over the name of Messrs. Weatherford & Wyatt, with an oral argument by Mr. J. R. Wyatt.
“If the appeal is from a decree and the cause is to be tried anew on the testimony, the clerk shall attach together the testimony, depositions, and other papers on file in his office containing the evidence heard or offered on trial in the, court below, and deliver the same to the appellant, taking therefor his receipt in duplicate, one of which receipts he shall file in his office, and the other deliver to the respondent when so required. Such evidence shall be deemed a part, of the transcript or abstract, and shall be filed therewith. ’ ’
In the instant case there are before us, annexed together, what the clerk of the Circuit Court declares by his certificate to be copies of the notice of appeal, undertaking on appeal, order extending time for filing transcript, and what he certifies and makes part of the transcript, defendant’s exhibits A, B, C, D and E, but there is no other testimony thereto annexed. Accompanying the papers is what perhaps may be a transcription of testimony in the cause, certified thus:
“In the Circuit Court of the State of Oregon for the County of Linn, Department No. 2.
“Theodore Nealan,
Plaintiff,
vs.
Al. Ring,
Defendant.
“Reporter’s Certificate.
“State of Oregon,
County of Marion, — ss.
“I, Edna G-arfield, do hereby certify that at Albany, Oregon, on the'24th day of December, 1918,1 reported in shorthand the proceedings had in the above entitled*495 cause; that subsequently the same was reduced to typewriting, and that the foregoing pages, numbered from 1 to 59, inclusive, constitutes all of the oral testimony adduced at said trial, and is an accurate transcript of said shorthand notes so taken by me, and of the whole thereof; that the exhibits therein referred to, consisting of Defendant’s Exhibits A, B, C, D and E, respectively, constitutes all of the documentary evidence offered and received at said trial; that each witness, before testifying, was first duly sworn to tell the truth, the whole truth and nothing but the truth.
“Dated at Salem, Oregon, July 1, 1919.
“(Signed) Edna G-aritbijd,
“Reporter.”
This transcript of testimony is not otherwise authenticated. It is not attached to the exhibits mentioned. It contains no file-mark or other evidence indicating that it had ever been in the custody of the county clerk. The reporter does not pretend to be the official reporter of the Circuit Court. For aught that appears she may have been the private stenographer of one of the parties, acting without any authority from the court. It is said in Neal v. Roach, 61 Or. 513" court="Or." date_filed="1910-03-08" href="https://app.midpage.ai/document/neal-v-roach-6902521?utm_source=webapp" opinion_id="6902521">61 Or. 513, 515 (107 Pac. 475, 476):
“Such evidence might have been identified by the judge who tried this suit and rendered the decree herein, and he undoubtedly could, by a proper certificate, have made the judgment-roll in the former suit, if it was received in evidence, a part of the transcript in this suit: Section 827, R. & C. Comp. [Section 838, Or. L.]; Hume v. Rogue River Packing Co., 51 Or. 237" court="Or." date_filed="1907-12-17" href="https://app.midpage.ai/document/hume-v-rogue-river-packing-co-6900749?utm_source=webapp" opinion_id="6900749">51 Or. 237 (83 P. 391" court="Or." date_filed="1905-12-04" href="https://app.midpage.ai/document/leavitt-v-shook-6900006?utm_source=webapp" opinion_id="6900006">83 Pac. 391, 92 Pac. 1065, 96 P. 865" court="Or." date_filed="1908-07-28" href="https://app.midpage.ai/document/state-v-hammelsy-6900844?utm_source=webapp" opinion_id="6900844">96 Pac. 865). * * It is sufficient to say that, unless it is identified and certified in the manner indicated, it will not be examined.”
In that case the clerk had made an affidavit that a certain judgment-roll had been introduced in evidence,
The regular channel through which the evidence reaches this court is that prescribed by the statute. The report of the testimony must originate with the official stenographer, if one is used, and his certificate is sufficient authentication of it for the purposes of suits in equity: Tallmadge v. Hooper, 37 Or. 503" court="Or." date_filed="1900-06-11" href="https://app.midpage.ai/document/tallmadge-v-hooper-6898408?utm_source=webapp" opinion_id="6898408">37 Or. 503 (61 Pac. 349, 1127); Sanborn v. Fitzpatrick, 51 Or. 457" court="Or." date_filed="1907-09-03" href="https://app.midpage.ai/document/sanborn-v-fitzpatrick-6900762?utm_source=webapp" opinion_id="6900762">51 Or. 457 (91 Pac. 540). These precedents and the instant case must be distinguished from Thomsen v. Giebisch, 95 Or. 118" court="Or." date_filed="1918-06-01" href="https://app.midpage.ai/document/thomsen-v-giebisch-6906909?utm_source=webapp" opinion_id="6906909">95 Or. 118 (173 Pac. 888, 186 Pac. 10), and Utah-Idaho Sugar Co. v. Lewis, 95 Or. 224" court="Or." date_filed="1920-02-10" href="https://app.midpage.ai/document/utah-idaho-sugar-co-v-lewis-6906919?utm_source=webapp" opinion_id="6906919">95 Or. 224 (187 Pac. 590), where we decided that the trial judge or his successor alone could make and sign a bill of exceptions in an action at law, although the same might consist largely of a transcript of the testimony. There is no such thing as a bill of exceptions in an equity case, and in this case we are concerned only with the manner of authenticating the testimony.
Affirmed.
Denied January 11, 1921.
Rehearing
On Petition for Rehearing.
(193 Pac. 747.)
On petition for rehearing. Denied.
Mr. Walter C. Winslow and Mr. V. A. Goode, for the petition.
Messrs. Weatherford & Wyatt, contra.
Department 1.
This cause was argued and submitted on October 6, 1920, and an opinion written by-Mr. Justice Burnett affirming the decree of the Circuit Court was handed down on November 9, 1920. In that opinion we declined to consider the testimony in the case for the reason that such testimony had not been filed with the clerk of the Circuit Court or authenticated by the circuit judge as required by law. After this opinion had been rendered, the appellant procured the transcript of testimony to be certified by the circuit judge, and now moves for a rehearing on the merits. The affidavit of one of appellant’s attorneys is substantially to the effect that he seasonably had the testimony extended and showed it to the attorneys for respondent, who assented to its accuracy; that he has no knowledge or recollection as to how it found its way into the office of the clerk of the Circuit Court; and that the failure to have .it certified was due to the excusable oversight of appellant’s attorney, who supposed that this had been done, until he saw the opinion of Mr. Justice Burnett in this case. He now asks leave to have the case reheard upon the merits.
This application comes too late. Had it been made before the hearing, we would have been inclined to permit the transcript to be amended; but to allow a party after having tried his case upon the transcript he has presented, and after defeat, to procure an amendment of it and a rehearing upon the transcript as amended, would lead to intolerable delays in the administration of justice. This is especially the case in instances like the present, where the defect was pointed out in.the respondent’s brief. We quote from that brief the following:
*499 “There is another feature in this case, that we are to presume that the transcript contains all of the evidence and exhibits. There was no official reporter appointed by the court to report or transcribe the evidence in the case and the same does not bear the file mark of the clerk of the court, nor is it identified in his certificate or by the certificate of the trial judge.”
This brief was filed November 8,1919, and the hearing was had on October 6, 1920, so that appellant had nearly a year prior to the hearing in which to procure the certificate of the trial judge, had he deemed it material.
Neither the affidavit nor the transcript of testimony shows any such controlling equities as should induce this court to disregard the salutary rule announced in State v. Jennings, 48 Or. 483" court="Or." date_filed="1906-11-21" href="https://app.midpage.ai/document/state-v-jennings-6900243?utm_source=webapp" opinion_id="6900243">48 Or. 483, 494 (87 Pac. 524, 89 P. 421" court="Or." date_filed="1907-04-09" href="https://app.midpage.ai/document/portland-iron-works-v-willett-6900384?utm_source=webapp" opinion_id="6900384">89 Pac. 421), which is substantially to the effect that amendments to the transcript will not be permitted after a cause has been argued and submitted and an opinion handed down: See, also, McCann v. Burns, 73 Or. 167, 172 (136 P. 659" court="Or." date_filed="1914-09-29" href="https://app.midpage.ai/document/mccann-v-burns-6904282?utm_source=webapp" opinion_id="6904282">136 Pac. 659, 143 Pac. 916, 1099, 1100); Noble v. Watrous, 84 Or. 418" court="Or." date_filed="1917-02-27" href="https://app.midpage.ai/document/noble-v-watrous-6905764?utm_source=webapp" opinion_id="6905764">84 Or. 418, 426 (163 Pac. 310, 165 P. 349" court="Or." date_filed="1917-06-06" href="https://app.midpage.ai/document/king-v-oregon-short-line-r-6905767?utm_source=webapp" opinion_id="6905767">165 Pac. 349); Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 359 (173 Pac. 267, 175 Pac. 659, 176 Pac. 289).
The petition for rehearing is denied.
Affirmed. Rehearing Denied.