Pacific Finance Corp. v. Ellithorpe

COSHOW, C. J. Defendants, who are respondents, have moved to strike the bill of exceptions from the files. This motion is based upon ten separately stated reasons. Eight of these reasons are alleged violations of the rules of the circuit court. One of the others is stated thus: “That it appears from its face, that said bill of exceptions does not comply with the law of the state of Oregon, particularly sections 169 170, 171, and 172, Oregon Laws.” The last reason is that said bill of exceptions was not filed in time. The bill of exceptions is a certified copy of all of the evidence, exhibits received, exhibits offered and rejected, *603 and all other matter material to the decision of the appeal of said cause. The bill of exceptions is duly certified by the Honorable Louis P. Hewitt, who presided at the trial of the circuit court. The attorney for defendants does not point out where the bill of exceptions fails to comply with the Oregon statutes cited. The bill of exceptions does comply with the General Laws, 1929, chapter 356, p. 410, with the exception that it was slightly more than 60 days from the entry of the judgment before said bill of exceptions was certified by the trial judge.' This court early in its history held that a trial judge had the discretion of settling and signing a bill of exceptions, even after the time limited therefor had expired: Che Gong v. Stearns, 16 Or. 219 (17 P. 781). That decision has been continuously followed since April 16,1888: Weinstein v. Wheeler, 127 Or. 406, 410 ( 257 P. 20, 271 P. 733). We think there is no merit in the other contentions of defendants. The bill of exceptions was settled and allowed for the purpose of bringing before this court the errors alleged to have been committed by the trial court. Defendants do not complain that the bill of exceptions is not correct. They make no attempt to show that the same is erroneous in any regard. The rules of procedure are not ordained for the purpose of mailing it difficult for a litigant to get before the court his claims; but, on the contrary, are adopted for the purpose of facilitating and helping an orderly trial of a case on its merits. Rules requiring notice to be given to an antagonist are required to be strictly enforced, but other rules are generally directory, and where it clearly appears that no possible harm could have resulted from a failure to strictly follow a rule, such failure will not be visited with dis *604 cipline. Courts will always try to aid litigants to have their claims fairly and fully presented to the court. The rules will be construed so as to effectuate that result rather than to be a test of the skill of the respective attorneys in the exercise of court procedure. Courts must follow the positive law, but after the court has once acquired jurisdiction most rules of procedure are directory only, and where no harm has resulted from a slight variation therefrom no punishment will be inflicted upon the person failing to proceed strictly and exactly in accord with the letter of the rule. We are not able to see how it is possible for defendants to have suffered in any regard by reason of plaintiff failing to strictly follow the rules referred to in every particular, and for that reason the motion to strike the bill of exceptions is denied. Howard T. McCulloch and Ralph W. Wilbur, both of Portland, for appellant. G. E. Hamaker of Portland for respondents.