Willey v. Herrett

133 P. 630 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the cburt.

According to the language of his brief, the defend* ant presents two questions: “ (1) The right óf a plaintiff to amend his complaint by changing the cause of action from an action on current account to an action on express contract; (2) the authority of the jury to pass upon the ownership of a fund, where the evidence shows that an agent representing several different principals, each of whom is indebted to a common creditor, who is likewise the creditor of the agent, pays the money of one of his principals to snch common creditor without indicating on which debtor’s account such money is to be applied.”

1. The only method employed by the defendant to raise the first question was by the motion to strike out the whole of the amended complaint. The abstract discloses that the first cause of action stated in that pleading was identical with the first cause stated in the original complaint; and, in any view of the case, that part was not amenable to the objection which the defendant would urge upon us. Even if his position were correct, he asked too much by his motion, in that he sought to strike out what was confessedly legitimate matter. His motion was rightly overruled, on that ground, if on no other.

2. An examination of the amended pleading, however, shows that the quality of the action was not changed. The substance of the amendment was to segregate the amount claimed in the second of the two causes of action in the first complaint into two items aggregating the same as in the first instance, the only difference being in the dates assigned to the performance of the services mentioned. Manifestly, the same kind of proof was applicable to either one of the complaints. Hence no error was committed in that respect.

3. On the record before us we find it impossible, within the rules many times laid down by this court respecting bills of exceptions, to consider the second question. "What is offered here as a bill of exceptions is a copy certified by the clerk to have been compared by him with an original bill of exceptions. It is composed almost entirely of what appears to be questions and answers of witnesses thereto, with objections and remarks of counsel and the judge, accompanied hy the certificate of the official reporter that the same is a correct transcript of all the evidence taken by him in the foregoing action, and is the whole thereof, but it is not stated that it is all the testimony in the case, Sundry exhibits are alluded to in this narration of the testimony, but they are neither read into the record, nor do they accompany it. What is apparently a charge to the jury is bound in with the foregoing matter, but whether it is the charge in this case is not stated by anyone. The bill of exceptions does not appear to be authenticated by the judge before whom the action was tried, except that the typewritten matter indicates that he certifies to having given an instruction about the application of payments, which is quoted. Such a paper does not in any sense constitute a bill of exceptions, authorizing the court to consider the question raised by the defendant’s brief. It has so often been held, as to amount to horn-book law in this state, that narration in the form of questions and answers, including objections of counsel and rulings of the court, as the same take place at the trial does not constitute a bill of exceptions. Neither will the court, for the purpose of discovering errors, search through such a volume of testimony. The rule governing the formation of a bill of exceptions is thoroughly discussed, and the precedents rehearsed, by Mr. Justice Slater in Keady v. United Rys. Co., 57 Or. 325 (100 Pac. 658, 108 Pac. 197). This case has been followed in Hahn v. Mackay, 63 Or. 100 (126 Pac. 12). In the absence of regular authentication of a proper bill of exceptions, we cannot determine whether the question presented constitutes error or not.

The judgment will therefore be affirmed.

Aeeirmed : Behearing Denied.