IN BANC. Action by the J.A. Campbell Company against C.G. Corley and another, individually and as copartners doing business under the name and style of Burns Bakery. From a judgment for defendants, plaintiff appeals. On motion to expunge bill of exceptions from the record.
MOTION DENIED. This is a motion to expunge the bill of exceptions from the record for the reason that the bill was not presented in accordance with rule No. 18 of the circuit court for Harney county, as the proposed bill of exceptions was not served upon opposing counsel, as provided by that rule, citing Oxman v.Baker County, 115 Or. 436, 452 (234 P. 799, 236 P. 1040), and other cases.
It appears from the briefs that judgment was entered against appellant on October 14, 1930. On December 10 of that year, notice of appeal and undertaking on appeal were served and filed. The circuit court, on different dates, made orders extending the time within which to prepare and file bill of exceptions and transcript on appeal. It is not questioned that the bill of exceptions was certified to by the trial court and filed, together with the transcript of record, within the time allowed by order of the trial court.
On January 26, 1931, the attorneys stipulated that the plaintiff have until February 1, 1931, "in which to prepare and file its bill of exceptions and transcript on appeal in the above entitled cause." Printed abstract of record was served on counsel for respondent on February 13, 1931, and filed on the 14th of that month.
There was another stipulation entered into in March, 1931, by the respective counsel, that appellant have until April 10, 1931, to prepare and serve its brief.
Counsel for appellant contend that the motion to expunge the bill of exceptions is not timely under rule No. 23 of this court. That rule provides:
"* * * All motions must be filed within ten days after a party or his attorney obtains knowledge of an alleged failure of the adverse party or his attorney to *Page 465 comply with the requirements of the statute or with the rules of this court, and unless so filed all defects, except objections to the jurisdiction of the court, will be taken as waived by the moving party." 123 Or. 688.
Therefore, it appears that there has not been a strict compliance with the rules mentioned by either party. The motion to expunge the bill of exceptions was not filed within ten days after the attorney had knowledge of the failure to serve the bill of exceptions. It is not contended or suggested that there is any error in the bill of exceptions. No injury on account of the failure to serve the counsel for respondents with copy of the bill of exceptions is shown, except such failure. The trial court certified to the bill of exceptions and the certificate is unquestioned. The failure to serve the bill of exceptions is not jurisdictional, and the motion to expunge the bill should have been filed within ten days from the time the attorneys for respondents had knowledge thereof, in order to be considered; otherwise, it is deemed to have been waived: State v. Adler,71 Or. 70 (142 P. 344); Bird v. Mayo, 75 Or. 101 (144 P. 574, 145 P. 13, 146 P. 475); Supreme Court Rule No. 23, 123 Or. 688.
In Li Sai Cheuk v. Lee Lung, 79 Or. 563 (146 P. 94, 156 P. 254), where an endorsement on the abstract of the record showed that plaintiff accepted service thereof August 12, 1914, and thereby obtained knowledge of the failure of defendant to comply with the statute or rules of the court as to the filing of a bill of exceptions, it was held that plaintiff's motion to dismiss defendant's appeal, in order to escape denial thereof, must be made within ten days of August 12, 1914.
In Mitchell v. Coach, 83 Or. 45 (153 P. 478, 162 P. 1058), it was held that since the filing of the undertaking *Page 466 on appeal is not jurisdictional, a motion attacking it for defect in time of filing must be filed within ten days of the filing of the undertaking, as required by rule No. 23, or it is deemed waived.
In Iltz v. Krieger, 104 Or. 59 (202 P. 409, 206 P. 550), we find, under Supreme Court Rule No. 23, a motion to dismiss the appeal for failure of the surety on appellant's bond to justify within ten days after the notice of exceptions to his qualifications, as required by the code, will be denied, where the motion is not filed within ten days, in accordance with rule No. 23, as the default was not jurisdictional. See also Paul v.Livestock State Bank, 116 Or. 626 (239 P. 108, 241 P. 56).
In Coos Bay Amusement Co. v. Am. Ry. Express Co., 129 Or. 216 (277 P. 107), we find the announcement that the bill of exceptions signed by the trial judge, who certified that it was presented within the time allowed, will be considered, notwithstanding a supplemental certificate to the effect that the bill of exceptions was not presented within the time required by court rule, and that no order had been made extending the time for submitting the bill of exceptions.
The learned counsel for respondents candidly state, in substance, that where something has been omitted from the bill of exceptions that does not injure the other party, a motion to expunge the bill of exceptions should perhaps not be sustained. Where the motion to expunge the bill of exceptions is filed later than permitted by rule No. 23, the matter complained of not going to the jurisdiction of the court, and it not being suggested that there is any error or defect in the bill of exceptions, we think that the same should not be expunged from the record.
The motion is, therefore, denied. *Page 467
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