In Re Dedman's Estate

KELLY, C. J. Defendant has interposed a motion to dismiss the appeal herein. Two grounds are assigned : 1. The plaintiff-appellant has failed to file with *694 the supreme court a transcript of the evidence taken by the official reporter or by a stenographer, who was appointed by the court to act as reporter pro tern, and who was possessed of the qualifications and had taken the oath prescribed for the official reporter; and 2. The plaintiff-appellant has failed to file a statement of exceptions settled and allowed by the judge, or a statement of exceptions verified by counsel by his own oath together with the other supporting affidavits required by section 5-702, O. C. L. A. Plaintiff-appellant has moved the court for a rule and order remanding the statement of exceptions to the court below for amendment and further certification. At the outset, we are confronted with the question whether this proceeding is in the nature of an action at law or a suit in equity. It is necessary to determine this question in order to decide whether any statement of exceptions should be required of appellant. It is settled that no bill of exceptions is required in a suit in equity, the same being tried anew on appeal. Plaintiff-appellant argues that this proceeding is one in the nature of an action at law. Defendant-respondent insists that it is equitable in its nature. The claim, upon which this case is based, is for services alleged to have been performed by plaintiff subsequent to the death of H. A. Dedman in auditing the books and accounts of deceased at the instance of Levi Stipp, who was then administrator of the estate of said H. A. Dedman, deceased. In support of her contention that this proceeding is legal in its nature, plaintiff cites: Wilkes v. Cornelius, 21 Or. 241, 23 P. 473; Johnston v. Shofner, 23 Or. 111, 31 P. 254; Bannon v. Thompson, 136 Or. 311, 298 P. 907; *695 In re First and Farmers Nat. Bank, 145 Or. 150, 26 P. (2d) 1103; In re Stout’s Estate, 151 Or. 411, 50 P. (2d) 768, 101 A. L. R. 672; Sigman v. Herdman, 167 Or. 527, 119 P. (2d) 277. Wilkes v. Cornelius, supra, was based upon a claim for board, lodging, care and medical treatment furnished to decedent during the last six years of her life. Johnston v. Shofner, supra, was based upon the following facts: Wesley Jackson, the decedent, was in partnership with Joseph Eichardson. A. Johnston, since deceased, as an accommodation maker, signed a note jointly with Prances Eichardson and Joseph Eichardson payable to the order of E. B. McFarland. The proceeds of this note were used by Joseph Eichardson as such partner. On April 10,1891, Eichardson and Jackson dissolved partnership and Jackson received all the assets of the firm and assumed all its obligations. On May 9,1891, Jackson died. On May 29,1891, Johnston was compelled to and did pay the note. Neither Eichardson nor Jackson repaid Johnston. J. C. Shofner, defendant and appellant, was the administrator of the estate of said Wesley Jackson, deceased. Emily L. Johnston, plaintiff and respondent, was the executrix of the last will and estate of said A. Johnston, deceased. Bannon v. Thompson, supra, was based upon a claim against the estate of Yolney C. Mead, deceased, for legal services performed for defendant’s testator during several years prior to her death. In re First & Farmers Nat. Bank, supra, was based upon notes dated February 16, 1917, and June 30, 1917, executed by said Yolney C. Mead, who died intestate on November 8,1917. In re Stout’s Estate, supra, was based upon a claim by the owner in fee of certain real estate for waste *696 alleged to have been committed by decedent while in possession of said real estate as life tenant. Sigman v. Herdman, supra, was based upon a claim for services performed for decedent while decedent was still living. None of these cases was based upon a contract made by the administrator or executor of the estate sought to be charged. Both parties hereto cite Murray’s Estate, 56 Or. 132, 107 P. 19. We quote from the opinion in that case: “But the status of a liability upon the administrator’s own contract for the benefit of the estate is very different from that of a debt created by the decedent in his lifetime and need not be presented to the estate at all by the creditor, being a preferred claim in favor of the administrator in the settlement of the estate. Section 1217, B. & C. Comp. Although Casto’s remedy was upon the personal liability of the administrator and not against the estate, yet there is an exception to this general rule as in case of a claim for funeral expenses or care of livestock, or in case of the insolvency of the administrator, to which might be added the removal of the administrator beyond the jurisdiction of the court. [Citing authorities.] And in such a case the creditor may be allowed to take the place of the administrator and be paid out of the estate to the same extent. ’ ’ Manifestly, the status of claimant herein is that of one seeking a recovery upon a contract made by the administrator for the benefit of the estate. The administrator having resigned leaving an alleged balance unpaid, the claimant, in effect, seeks subrogation to the rights of the administrator. “It has been said that subrogation is not strictly a remedy, but rather that it is an equitable principle through which the benefit of remedies is obtained. It is an equitable doctrine and the right thereto is an equi *697 table right not a legal right. 60 C. J. [Subject, Subrogation]. p. 697, §4. We think that this is an equitable proceeding. Taking that view, it follows that no bill of exceptions or statement of exceptions is required. None being required, the motion of plaintiff for an order remanding such statement for amendment and further certification should be and is denied and overruled. Obviously, there can be no trial de novo upon the testimony when there has been no properly authenticated transcript thereof filed. Such is the state of the record here. The stenographer, who made the purported transcript of testimony and who alone certifies to its accuracy, was not the official court reporter, nor a stenographer appointed by the court as pro tern reporter, nor did she take the oath prescribed for the official reporter. The trial judge declined to authenticate the report of the testimony so made. “The regular channel through which the evidence reaches this court is that prescribed by the statute.” Nealan v. Ring, 98 Or. 490, 496, 184 P. 275, 193 P. 199. The statute provides that the report of the official reporter, when transcribed and certified to as being a correct transcript of the stenographic notes of the testimony, etc., shall be prima facie a correct statement of such testimony, etc. Yol. 6, O. C. L. A., Sec. 93-277, p. 474. The statute also provides: “That in the event of the absence or inability of the official reporter to act, the judge may appoint a competent stenographer to act pro tern., who shall perform the same duties as the official reporter, and whose report, when certified to, shall *698 have the same legal effect as the certified report of the official reporter. The reporter pro tern, shall possess the qualifications and take the oath prescribed for the official reporter, and shall receive the same compensation.” Vol. 6, O. C. L. A., Sec. 93-278, p. 474. In the record before us, it affirmatively appears that the official reporter was present at the trial hereof and ready, able and willing to report the testimony therein. The only question presented by the record before ns is whether the pleadings support the decree of the trial court. That question appearing in the record, the motion of defendant to dismiss the appeal is untenable and should be and is hereby denied and overruled.