Tatum v. Massie
44 P. 494
Or.
1896
Check Treatment

Opinion by

Mr. Justice Wolverton.

1. The first two assignments of error may he considered together. They simply challenge the findings as not the correct conclusions of fact to be deduced from the evidence, but, in the absence of a bill of exceptions, there is nothing in the record as it comes here to apprise us what the evidence was. We must therefore presume that it was sufficient to support the findings of the court as to the facts.

*1442. The next question is taken upon the fifth finding, “That the contract marked Plaintiffs’ Exhibit ‘A’ herein constitutes a chattel mortgage as between Western and plaintiffs, and that the same is void and of no effect as to attaching creditors.” The contention of appellants is that the document interpreted by the court, being referred to as “Plaintiffs’ Exhibit ‘A’ herein,” makes it a part of the record; that it properly comes here as a part of the transcript, and that it is competent for this court to take cognizance of it, and determine whether rightly interpreted by the lower court. Let us ascertain first whether the exhibit should come here in the transcript. It was conceded at the argument that such exhibit was introduced in plaintiffs’ behalf as evidence at the trial, and that it is not attached to or made a part of the pleadings in the cause. The statute defines the transcript to be “ a copy * * * of the roll, or final record, or the pleadings, orders, papers, and journal entries that constitute such roll or record, together with a copy of the notice of appeal,” etc. Hill’s Code, § 541, subdivision 1. The judgment roll is made up of “the summons and proof of service, the pleadings, bill of exceptions, all orders relating to the change of parties, together with the copy of the entry of judgment, and all other journal entries or orders in any way involving the merits and necessarily affecting the judgment.” The final record is simply a record of such papers and journal entries: Code, §§ 272, 273. The finding itself is properly in transcript, as it constitutes a part of the judgment *145roll, but Exhibit “A” not being such a paper as goes to make up the judgment roll, it ought not to be included in the transcript unless it is made a part of the findings. In Roberts v. Parrish, 17 Or. 583, (22 Pac. 136,) the question came up whether a certain deposition was a part of the bill of exceptions. At page 588 Stkahan, J., says: “It is true the bill of exceptions recites that the ‘ deposition is made a part of the bill of exceptions,’ but that alone will not suffice. To become a part of the record, it must be either copied into the bill of exceptions or attached to the same as an exhibit, and marked so that the same may be identified,” citing; Morrison v. Crawford, 7 Or. 472. Exhibit “A” is neither copied into the finding nor attached thereto. We find a paper marked “Plaintiffs’ Exhibit A” attached to the transcript, which is probably the one referred to by the court, but this is not sufficient under the authority cited to make it a part of the finding, and hence it is not properly in the transcript. See also Fisher v. Kelly, 26 Or. 249, (38 Pac. 67,) not being a part of the transcript, and no bill of exceptions having been settled and filed making the exhibit a part of the record, its legal effect cannot be considered on appeal.

The next question is, Do the findings support the judgment? They do, unless the fifth negatives the other findings of fact: Himmelman v. Henry, 84 Cal. 106 (23 Pac. 1098); Hicklin v. McClear, 18 Or. 137 (22 Pac. 105). It certainly does not aid them, nor does it constitute a link in the chain from which the conclusion of law is deducible. It was con*146tended at the argument that “Exhibit A” was not a chattel mortgage, but a contract of sale, showing that, as between plaintiffs and Western, plaintiffs were the owners of the property. But there is nothing in the record to indicate the purpose for which the document was offered, or what was claimed for it at the trial. Nor is it apparent what other testimony, if any, was introduced in connection with it which may or may not have modified it, or have had some important bearing upon its effect as testimony in the case. It is the office of the bill of exceptions to set forth these facts, and thereby make them a part of the record. Without them how are we to determine, except as an abstract proposition, upon an inspection of the contract, whether it was properly construed or not? But conceding the document to be a contract of sale, and not a chattel mortgage, and that it is evidence of title in the plaintiffs, it does not appear but that there was other evidence introduced to refute. it, and that, after all, the other findings of fact are but the conclusions of the court upon conflicting evidence, which findings stand as the verdict of a jury, and are not reviewable upon the ground that they are not sustained by a preponderance of the evidence. The conclusion that the instrument is void and of no effect as to attaching creditors does not create any inference of want of title to the property in Western, or that, if otherwise construed, it would stand in the way of an attachment thereof as his property. So that, turn the finding as you will, it does not, so far as we are *147able to discern, modify or dispute the other findings of fact. It does not, however, appear to answer any definite purpose, and yet it would seem to be harmless.

3. Error which is prejudicial should affirmatively be made to appear, as it will never be presumed. If the plaintiffs desire a finding as to whether they were the owners of the property at the time of the attachment, or other material finding upon the evidence adduced at the trial, they should have requested it of the court in due time, and, if refused, or if against them where there was no evidence to support it, they could, by a proper bill of exceptions, have its action in regard thereto reviewed. This court can only consider the findings which the record of the lower court shows were actually made: Hicklin v. McClear, 18 Or. 137 (22 Pac. 1057); No-land v. Bull, 24 Or. 481 (33 Pac. 983); Umatilla Irrigation Company v. Barnhart, 22 Or. 389 (30 Pac. 37).

It follows that the judgment must be affirmed, and it is so ordered. Affirmed.