63 P. 1050 | Or. | 1901
Lead Opinion
On Motion- to Strike Out Part of the Transcript.
This is a motion to strike from the files what purports to be a transcript of the stenographer’s notes of the proceedings had at the trial in the court below from the impaneling of the jury to the rendition of their verdict, which covers three hundred and twenty-six pages of the printed abstract, and is designated as “Transcript of Trial,” for the reason that it is not properly part of the record.
Rehearing
On Motion for Rehearing.
Generally speaking, an appeal should not be dismissed or judgment affirmed in advance of a hearing in its order on account of a defective bill of exceptionSj or even a want thereof: 2 Ency. Pl. & Pr. 346; 3 Ency. Pl. & Pr. 511; Corder v. Speake, 37 Or. 105 (51 Pac. 647). The jurisdiction of the court, the sufficiency of the complaint, and perhaps other questions, can be raised on appeal without such a bill. Moreover, a bill of exceptions, which, through inadvertence or mistake, has been incorrectly made up, may, by order of the trial court entered nuñc pro tunc on proper notice be so amended as to make it conform to the facts, even though an appeal is pending: State ex rel. v. Estes, 34 Or. 196 (51 Pac. 77, 52 Pac.
Upon the other points the petition is without merit. The acts authorizing the appointment of official reporters have not, in our opinion, changed or modified the law in reference to bills of exception and the settlement thereof. The only way to make oral matter or oral evidence in a law action a part of the record is by incorporating it into a bill of exceptions, or by annexing it thereto as an exhibit, and thus making it a part thereof. The portion of the order affirming the judgment, being technically erroneous, will therefore be vacated, and a rehearing denied. Affirmed; Rehearing Denied.