STATE OF OREGON, Rеspondent on Review, v. RHONDA COLGROVE, Petitioner on Review.
CC 17CR57106; CA A169952; SC S068372
In the Supreme Court of the State of Oregon
December 1, 2022
370 Or 474; 521 P3d 456
NELSON, J.
Argued and submitted November 9, 2021, resubmitted January 25; decision of Court of Appeals affirmed, circuit court’s judgment of conviction affirmed in part and vacated in part, and case remanded to circuit court for further proceedings; circuit court’s judgment for costs of appointed counsel reversed December 1, 2022
Defendant pleaded guilty to misdemeanor driving under the influence of intoxicants and filed a petition to enter diversion. The trial court accepted defendant’s guilty plea that had been filed as part of the petition, but it withheld entry of a judgment of conviction. Defendant failed to pay $335 in fees and to attend a victim impact panel within the diversion period. The trial court thereafter terminated the diversion agreement and entered a judgment of conviction. Defendant appealed, challenging her conviction on the ground that the trial court had erroneously terminated her diversion agreement. The Court of Appeals assumed that defendant’s challenge was reviewable under
The decision of the Court of Appeals is affirmed. The circuit court’s judgment of conviction is affirmed in part and vacated in part, and the case is remanded to the circuit court for further proceedings. The circuit court’s judgment for the costs of appointed counsel is reversed.
On review from the Court of Appeals.*
Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelsоn, Garrett, and DeHoog, Justices.**
NELSON, J.
The decision of the Court of Appeals is affirmed. The circuit court’s judgment of conviction is affirmed in part and vacated in part, and the case is remanded to the circuit court for further proceedings. The circuit court’s judgment for the costs of appointed counsel is reversed.
______________
* On appeal from the Umatilla County Circuit Court, Paul G. Crowley and Daniel J. Hill, Judges. 308 Or App 441, 480 P3d 1026 (2021).
** Nakamoto, J., retired December 31, 2021, and did not participate in the decision of this case.
NELSON, J.
This
I. BACKGROUND
A. DUII Diversion Statutes
This case concerns a driving under the influence of intoxicants (DUII) conviction following the termination of a diversion agreement. We therefore begin by providing an overview of the statutes governing DUII diversion. See
Generally, a defendant charged with DUII who satisfies certain eligibility requirements may file a petition for diversion.
The diversion agreement “shall be for a period of one year after the date the court allows the petition.”
At any time before the court dismisses the DUII charge with prejudice, or on the court’s own motion or the motion of a district or city attorney, the court may issue an order requiring the defendant to show cause why the
However, if a defendant has fully complied with and performed the conditions of the diversion agreement, the defendant is entitled to dismissal of the DUII charge with prejudice. See
B. The Facts
With that understanding of the statutes, we set out the basic facts. Defendant pleaded guilty to misdemeanor DUII and filed a petition to enter diversion. Defendant’s diversion petition stated, in part, that she had “read and underst[ood] all of the information in the attached Explanation of Rights and DUII Diversion Agreement” and “agree[d],” among other things, to “[a]ttend a victim impact panel as ordered by the court.” (Emphasis in original.) The accompanying Explanation of Rights and DUII Diversion Agreement form stated, in part, that, if defendant “fail[ed] to fulfill the terms of the agreement by the end of the diversion period, the court [would] sentence [her] without a trial.” Defendant’s guilty plea also included a statement that defendant understood that, if she “fail[ed] to comply with the diversion agreement within the diversion period, the court [would] enter a judgment of conviction on the charge and w[ould] sentence [her].” The trial court issued an order allowing defendant’s diversion petition, ordering her to attend a victim impact panel, and establishing a one-year diversion period with specific beginning and ending dates. As required by
Defendant failed to pay $335 in fees and to attend a victim impact panel within the diversion period. The trial court thereafter terminated the diversion agreement and entered a judgment of conviction, and defendant appealed.2 As pertinent here, defendant challenged
II. REVIEWABILITY UNDER ORS 138.105(5)
A. Defendant’s Arguments
Again,
“The first refers to a finding of guilt by a plea or verdict. The second, more technical meaning refers to the final judgment entered on a plea or verdict of guilt. In the latter case conviction has not been accomplished until the judgment is made by the court.”
See also Webster’s Third New Int’l Dictionary 499 (unabridged ed 2002) (defining “conviction” to mean “the act of proving, finding, or adjudging a person guilty of an offense or crime”).
In the context of
To resolve defendant’s contentions, we must interpret
B. Statutory Text
We begin with the text of the statute, which was enacted as part of Senate Bill (SB) 896 (2017).
“The appellate court has no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest, except that:
“(a) The appellate court has authority to review the trial court’s adverse determination of a pretrial motion reserved in a conditional plea of guilty or no contest under
ORS 135.335 .“(b) The appellate court has authority to review whether the trial court erred by not merging determinations of guilt of two or more offenses, unless the entry of separate convictions results from an agreement between the state and the defendant.”
(Emphases added.)
According to defendant, the legislature intended the term “conviction” in the first part of that statute to mean “finding of guilt.” It is plausible that, as used in the phrase “a conviction based on the defendant’s plea of guilty or no contest,” the term “conviction” could have that meaning. As noted, in Vasquez, this court identified “finding of guilt by a plea or verdict” as an accepted legal meaning of the term “conviction.” 272 Or at 480.
Further, defendant argues that “[t]he fact that
“interpreting ‘conviction’ to mean ‘finding of guilt’ avoids redundancy by allowing conviction and plea to mean different things. By precluding review of the plea, the statute bars defendants from arguing that their decision to plead guilty was not knowing or voluntary.3 By precluding review of the conviction, the statute bars defendants from disputing the court’s finding of guilt based on the plea. But the statute does not bar defendants from arguing that, notwithstanding their factual guilt, some other legal impediment precludes the entry of a judgment of conviction. Defendant’s interpretation avoids redundancy and gives full effect to each word in the statute.”
However, defendant’s proffered interpretation of the term “conviction” also introduces redundancy into the statute. That is so because, if defendant were correct that an appellate court has authority to review all legal challenges other than challenges to the validity of the plea or the “finding of guilt” in the plea, then much of
By contrast, as noted above, “conviction” also can refer to “the final judgment entered on a plea or verdict of guilt.” Vasquez, 272 Or at 480; see id. at 479 (“A ‘judgment’ in a criminal case constitutes a judicial determination of guilt based on a verdict or plea of guilty and imposes a penalty for the transgression committed by the defendant.”); see also State v. McDonnell, 306 Or 579, 581-82, 761 P2d 921 (1988) (“A plea or verdict of guilty is not synonymous with a conviction. * * * A ‘judgment of conviction’ represents the combined factual and legal determinations that the defendant committed acts constituting a crime and that there is no legal impediment to so declaring; it is the string that ties up the package.”). If “conviction” refers broadly to the judicial determination of guilt reflected in the judgment entered on the plea and an appellate court has no authority to review challenges to the “conviction,” then the need for the express exceptions embodied in
Further, adopting defendant’s understanding of
When interpreting statutes, we generally assume that “the legislature intended the same word to have thе same meaning throughout related statutes unless something in the text or context of the statute suggests a contrary intention.” Village at Main Street Phase II v. Dept. of Rev., 356 Or 164, 175, 339 P3d 428 (2014). Further, we typically presume that the legislature intended to avoid “meaningless surplusage.” State v. Clemente-Perez, 357 Or 745, 755, 359 P3d 232 (2015); see also Vsetecka v. Safeway Stores, Inc., 337 Or 502, 510, 98 P3d 1116 (2004) (“When, as in this case, a statute contains multiple provisions,
C. Statutory Context
1. ORS 138.105 and related statutes
Further examination of the statutory context confirms that conclusion. See SAIF v. Ward, 369 Or 384, 394, 506 P3d 384 (2022) (“The context of a statute includes other provisions of the same statute and related statutes, as well as the preexisting common law and the statutory framеwork within which the statute was enacted.” (Internal quotation marks omitted.)). As noted,
As a result of the enactment of SB 896, separate but interrelated statutes govern “appealability” and “reviewability” in appeals by defendants and by the state. See
As pertinent here, a defendant, among other things,
“may take an appeal from the circuit court * * * to the Court of Appeals from a judgment:
“(A) Conclusively disposing of all counts in the accusatory instrument or conclusively disposing of all counts severed from other counts;
“(B) Convicting the defendant of at least one count; and
“(C) Imposing sentence on all counts of which the defendant was convicted.”
If a defendant appeals such a judgment,
In addition, although
2. Preexisting common law and statutory framework
As noted, the context of a statute also includes “the preexisting common law and the statutory framework within which the statute was enacted.” Ward, 369 Or at 394 (internal quotation marks omitted); see State v. Cloutier, 351 Or 68, 100, 261 P3d 1234 (2011) (“Our analysis of [a statute] is also informed by this court’s prior construction of that statute or its predecessors.”); see also State v. Rusen, 369 Or 677, 685, 509 P3d 628 (2022) (recognizing principle that context includes case law existing at the time оf a statute’s adoption). Because SB 896 retained significant features of the preexisting common law and statutory framework related to the concepts of “appealability” and “reviewability” in cases involving guilty and no contest pleas, an understanding of that framework is an appropriate place to start before we turn to the bill’s legislative history.
In a nutshell, the task of determining whether an appellate court had jurisdiction of an appeal in a criminal case and, if it did, whether the appellate court had authority to review the issues that an appellant had raised on appeal, was complex. To resolve those issues, appellate courts were often placed in the position of applying multiple interrelated statutes in ORS chapter 138 that, in turn, had been interpreted by the courts in myriad contexts over the course of many years. Those statutes, and the case law interpreting them, did not always clearly distinguish between the concepts of “appealability” and “reviewability.”
That lack of clarity was particularly acute in the context of cases in whiсh defendants had pleaded guilty or no contest and thereafter sought to appeal. In Cloutier, this court described, in detail, the history of four interrelated statutes in ORS chapter 138 that governed appealability and reviewability following a guilty or no contest plea, which were all eventually repealed by SB 896: (1) former
As the court in Cloutier explained, in 1864, the “legislature first conferred appellate jurisdiction to review a judgment entered in a criminal case” in a statute that also permitted review of intermediate trial court rulings. 351 Or at 76. Thereafter, the legislature enacted new sentencing laws in 1905, and this court was eventually asked to determine whether an appellate court could review a sentence imposed under those laws after a defendant had plеaded guilty. Id. at 77. The court concluded that the legislature had implicitly conferred such authority in the 1864 statute that authorized appeals from judgments of conviction, “which the court held included convictions based on guilty pleas.” Id. (describing State v. Lewis, 113 Or 359, 230 P 543 (1924), adh’d to on reh’g, 113 Or 370, 232 P 1013 (1925)). “[T]he effect of a guilty plea [was] to admit the facts as charged in the indictment; but that [did] not preclude a defendant who [had] so pleaded from advancing purely legal challenges to the lawfulness of the conviction or the sentence that resulted.” Id. (describing Lewis, 113 Or at 361-62). Then, in 1945, the
In 1953, the legislature revised and codified the state’s then-existing statutes into the Oregon Revised Statutes. Id. at 79. The legislature’s original 1864 grant of appellate jurisdiction to review a judgment entered in a criminal case was codified at former
This court was later asked to address the effect of former
Thereafter, the legislature amended former
Although the scope of appellate court review of sentences or dispositions in cases involving guilty or no contest pleas varied over the years, one aspect of the law had remained constant: Former
As the foregoing history demonstrates, when the legislature passed SB 896 in 2017, it had long been settled that, when a defendant who had pleaded guilty or no contest appеaled, the defendant could not challenge the conviction. Over time, many legal challenges arising in different contexts before the enactment of SB 896 were deemed to be challenges to a defendant’s conviction that fell within the bar just described. See, e.g., State v. Clevenger, 297 Or 234, 236, 683 P2d 1360 (1984) (entry of judgment without making a proper inquiry into the adequacy of the factual basis for the plea); State v. Woodard, 121 Or App 483, 485, 855 P2d 1139, rev den, 318 Or 26 (1993) (conviction for the crime to which the defendant had pleaded as opposed to another crime); State v. Balukovic, 153 Or App 253, 255-56, 258, 956 P2d 250 (1998) (revocation of defendant’s deferred sentencing program for failure to comply with a purportedly unlawful condition and failure to furnish a competent interpreter at the revocation hearing); State v. Anderson, 215 Or App 643, 171 P3d 972 (2007) (lack of authority to enter a judgment of conviction where the plea had a proviso that a conviction would not be entered unless the defendant failed to satisfy a condition and the court erroneously determined that a condition had not been satisfied); State v. Brown, 225 Or App 207, 208, 199 P3d 890 (2009) (acceptance of an involuntary plea); State v. Landahl, 254 Or App 46, 48-49, 292 P3d 646 (2012), rev den, 353 Or 788 (2013) (set aside of previous judgment dismissing DUII charge); Clements, 265 Or App at 23 (denial of motion to withdraw plea); State v. Herrera, 280 Or App 830, 832, 383 P3d 301 (2016), rev den, 360 Or 852 (2017) (entry of judgment where the state had failed to initiate revocation proceedings before the period of cоnditional discharge had expired).
One legal challenge had “vexed” the Court of Appeals over the years—namely, whether “a challenge to a trial court’s decision not to merge multiple determinations of guilt, resulting in the entry of a judgment reflecting multiple convictions, is a challenge to one or more of those convictions” that “cannot confer jurisdiction on [the] court in a case in which the defendant had pleaded guilty or no contest.” Davis, 265 Or App at 433-34. In State v. Sumerlin, 139 Or App 579, 584-85, 913 P2d 340 (1996), the Court of Appeals had ruled that such challenges were reviewable because they pertained to whether a disposition exceeded the maximum allowable by law. Thereafter, the Court of Appeals repeatedly adhered to its decision in Sumerlin, rejecting arguments that that case had been wrongly decided. Davis, 265 Or App at 434.
In sum, at the time that the Oregon Law Commission submitted SB 896 to the legislature for consideration in 2017, the preexisting statutory and common law framework had three salient features. First, a defendant who had pleaded guilty or no contest could not obtain review of legal challenges pertaining to a conviction, but could obtain review of challenges pertaining to a sentence, the scope of which was governed by statute. Second, “conviction” was understood broadly to encompass all decisions that led to the entry of the judgment reflecting the trial court’s judicial determination of a defendant’s guilt. Third, legal challenges concerning merger were reviewable. As we will explain—and contrary to defendant’s contentions that SB 896 “is more like the 1864 law” on reviewability and was intended to “preclude[] review of the guilty finding but permit[] review of other rulings”—the legislative history demonstrates an intent to retain those three aspects of the preexisting framework while making some changes to the scope of review of sentencing decisions in misdemeanor cases.
D. Legislative History
The primary legislative history is a work group report that the commission submitted to the legislature, explaining SB 896 in detail. Exhibit 37, Senate Committee on Judiciary, SB 896, Apr 6, 2017 (Report of the Direct Criminal Appeals Work Group on SB 896 (2017), Oregon Law Commission) (Criminal Appeals Report). The work group had been tasked with “reorganizing, streamlining, and clarifying existing statutory provisions.” Criminal Appeals Report at 2. In addition, the work group “prоpose[d] to codify some case law, to modernize some older statutory provisions, and to make a few substantive changes to the law, as outlined in this Legislative Report.” Id. As Judge Stephen Bushong—a Commissioner of the Oregon Law Commission and the work group’s chair—explained to the legislature, the purpose of the report was to provide “a roadmap for the practitioners who utilize this * * * system,” because, “any time you change a word or two
Although defendant points to various memoranda in appendices attached to the report to support her contention that the work group likely intended to make legal challenges reviewable (such as, e.g., an erroneous termination of a defendant’s diversion), the report explained that “[t]he memoranda reflеct[ed] the views of the respective authors of the memoranda and [did] not necessarily reflect the view of all Work Group members or the Work Group collectively.” Criminal Appeals Report at 3. Further, each memorandum began with a disclaimer stating, “Disclaimer: Any legal analysis or expression of opinion is that of the author of the memorandum and do not necessarily reflect the views of the Oregon Law Commission, the Work Group as a whole[,] or its members.” See, e.g., id. at 29 (boldface omitted). Because the memoranda did not reflect the intention of the work group or the Oregon Law Commission, and because there is no indication that the legislature intended to depart from the work group’s official position, we focus on the text of the report itself as opposed to its appendices. See Gaines, 346 Or at 166 (“[T]he court may give whatever weight it deems appropriate to the legislative history that a party offers.”).
According to the report, “the current statutory scheme (and case law)” did not “always clearly distinguish” between “appealability” (i.e., “a circuit court decision that the Legislature has authorized the State or the defendant to appeal, such as a judgment of conviction and sentence”) and “reviewability” (i.e., “whether the appellate court may consider and decide requests to review the validity of any of the myriad decisions a trial court may make along the way to rendering an appealable judgment or order”). Criminal Appeals Report at 5-6. The report explained that those concepts were not congruent for a variety of reasons, including that, in the context of cases involving guilty or no contest pleas, “the Legislature ha[d] disallowed appellate court review of the trial court’s decision to enter a judgment of conviction for [the] crime.” Id. at 6.
As pertinent to the interpretive issue in this case, the report explained that the primary intent behind what is now
Further, the report identified an intent to expand the scope of review of sentences for misdemeanor offenses, in what became
In sum, consistently with the preexisting common law and statutory framework, the work group intended to “restate” the principle that a defendant who had pleaded guilty or no contest could not obtain review of legal challenges to the judicial determination of guilt reflected in the judgment on appeal, which encompassed intermediate trial court decisions, as evidenced by the exception identified for review of adverse pretrial rulings under
Defendant contends, however, that the legislative history indicates that “the legislature did not retain the limits of former
Defendant’s contention finds its origin in discussions concerning the expansion of the scope of review of misdemeanor sentences. The fiscal impact statement associated with SB 896 indicated that the impact was “indeterminate” and explained that “[t]he Department of Justice (DOJ) [had noted] that[,] because the measure provides for more opportunity to appeal misdemeanor cases, there is likely to [be] some impact on the Appellate Division’s Defense of Criminal Convictions program.” Fiscal Impact Statement, SB 896, Apr 5, 2017.
In addressing the potential, indeterminate fiscal impact, then-Appellate Commissioner James W. Nass—who had authored the Criminal Appeals Report as the work group’s reporter—acknowledged that the change in the scope of review of misdemeanor sentеnces could lead to an increase in the number of cases. Audio Recording, Joint Committee on Ways and Means Subcommittee on Public Safety, SB 896, June 5, 2017, at 22:58 (testimony of James W. Nass), https://olis.oregonlegislature.gov (accessed Nov 16, 2022). However, Nass explained that such an increase was “not likely” because misdemeanor sentences cannot exceed one year in length and cases challenging such sentences therefore “usually become moot” while an
“was one of the contentious issues that the representatives of the district attorneys’ office[s], defense bar, and then the Office of Public Defense Services and Solicitor General’s Office * * * discussed and worked their way through. I was not a party to that, but the representation at the end of the day was that they all could live with this.”
Id. at 24:38. In conclusion, Nass commented, the work group “certainly would not have advocated for making a change in the law if [the group] thought it would substantially increase the court’s workload.” Id. at 24:05. Aaron Knott, Legislative Director for the Department of Justice, essentially expressed agreement with Nass’s assessment of the potential fiscal impact, id. at 27:35, as did Ernest Lannet, Chief Defender of the Criminal Appellate Section of the Appellate Division of the Office of Public Defense Services and a member of the work group, who testified that “Commissioner Nass has * * * represented what has gone on and the process and where we ended up,” id. at 30:38.
In the light of that history, defendant is correct that the legislature understood that SB 896 could cause an increase in the number of appeals in misdemeanor cases. However, the history clearly demonstrates that any such increase would be attributed to the expansion of the scope of review of sentences in appeals involving misdemeanors. Thus, defendant’s reliance on that history to conclude that the legislature intended to permit defendants who plead guilty or no contest to challenge their convictions on appeal is misplaced.
The foregoing analysis demonstrates that defendant’s proposed reading of “conviction” in
III. CONSTITUTIONAL CHALLENGES
That brings us to defendant’s final contention—viz., that “interpreting
A. Oregon Constitution
Relying on Article VII (Amended), section 3,7 defendant contends that “the legislature
“When the legislature makes decisions about appealability, its power over the appellate process is at is greatest—it alone decides whether to authorize a party to appeal. A dispute about whether a particular judgment or order should be appealable is a dispute between the legislature and the party who wishes to appeal, not the judiciary.
“But when the legislature makes decisions about reviewability, its power is at its weakest—it is limiting the power of the court to adjudicate a case that is properly before the court. A dispute over whether an appellate court should affirm or reverse a judgment is a dispute between the parties and the court, in which the legislature should have little or no role.”
However, as we will explain, defendant’s argument rests on a faulty premise—namely, that the right to appeal a judgment or order implicates only appealability.
Contrary to defendant’s position, in State v. Nix, 356 Or 768, 772, 345 P3d 416 (2015), we explained that the right to appeal, which is a legislative prerogative, encompasses both “appealability” and “reviewability”:
“There is no inherent right to an appeal. State v. McAnulty, 356 Or 432, 438, 338 P3d 653 (2014)[, cert den, 577 US 829 (2015)]. Instead, the right to appeal must be statutorily authorized. Waybrant v. Bernstein, 294 Or 650, 653, 661 P2d 931 (1983). The statute authorizing an appeal may include limitations on the issues that may be reviewed in an appeal. Logsdon v. State and Dell, 234 Or 66, 70, 380 P2d 111 (1963).”
See also State v. Endsley, 214 Or 537, 546, 331 P2d 338 (1958) (“‘The legislature * * * has the power to define in what cases, and under what circumstances, and in what manner, an appeal may be taken to this court.’” (Quoting City of Portland v. Gaston, 38 Or 533, 535, 63 P 1051 (1901))). Before the enactment of SB 896, statutes authorizing an appeal often governed both “appealability” and “reviewability,” and the grants were often coextensive. The legislature’s decision in SB 896 to express those concepts in more than оne statute does not affect the long-standing principle that the legislature may limit the issues that a court may review on appeal.
Defendant further contends that Article VII (Amended), section 1, in providing that “[t]he judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law,” thus prohibits legislative limitations on reviewability because such statutes “interfere[] with the judiciary in a manner which prevents or obstructs the performance of its irreducible constitutional task, adjudication.” Circuit Court v. AFSCME, 295 Or 542, 550, 669 P2d 314 (1983). In AFSCME, however, we explained that “[t]here can be no question that the legislature may enact laws prescribing the exercise of judicial powers.” 295 Or at 549. “Only an outright hindrance of a court’s ability to adjudicate a case” or “the substantial destruction of the exercise of a power essential to the adjudicatory function will prompt an [A]rticle VII, section 1[,] violation.” Id. at 551 (internal citations omitted). We do not understand
B. United States Constitution
Defendant also contends that, if
IV. CONCLUSION
We have examined the text of
The practical effect of the reviewability bar in
The decision of the Court of Appeals is affirmed. The circuit court’s judgment of conviction is affirmed in part and vacated in part, and the case is remanded to the circuit court for further proceedings. The circuit court’s judgment for the costs of appointed counsel is reversed.
Notes
Defendant also appealed a separate judgment entered on December 3, 2018, that required her to pay a particular amount for the cost of court-appointed counsel. On appeal, defendant challenged, among other things, the imposition of various fines and fees in the judgment of conviction and the imposition of the costs of counsel in the December 3, 2018, judgment. Ultimately, the Court of Appeals reversed the latter judgment and vacated the $255 DUII conviction fee in the judgment of conviction, remanded the entire case for resentencing, and otherwise affirmed. On review, defendant has not challenged those rulings in the event that we reject her contentions related to the conviction itself. Accordingly, we do not discuss those rulings further.
“‘Sentence’ means all legal consequences established or imposed by the trial court after conviction of an offense, including but not limited to:
“(a) Forfeiture, imprisonment, cancellation of license, removal from office, monetary obligation, probation, conditions of probation, discharge, restitution and community service; and
“(b) Suspension of imposition or execution of any part of a sentence, extension of a period of probation, imposition of a new or modified condition of probation or of sentence suspension, and imposition or execution of a sentence upon revocation of probation or sentence suspension.”
“[2] 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. [3] 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.”