State Ex Rel. Kaser v. Leonard

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 581 The respondent has filed a motion to expunge from the record in this court the appellants' bill of exceptions, on the ground that the circuit court "was without jurisdiction to settle any bill of exceptions whatever at the time it undertook to do so because the order for extension of time was not made in compliance with the rules of the circuit court applicable to that situation, nor was said order [extending the time in which the bill of exceptions might be tendered] entered within the time prescribed by statute, that is, within sixty days after the entry of the judgment in this cause." The action was instituted in the circuit court of the state of Oregon for Tillamook county and was tried before the Honorable Joseph H. Page, judge pro tempore. Judgment was entered in favor of the plaintiff and against the defendants on February 28, 1939. Notice of appeal was served and filed by the defendants April 25, 1939. On this latter date the trial judge made an order extending the defendants' time to tender and file a bill of exceptions sixty days beyond the time allowed by law. This order was not filed until May 24, 1939. On July 19, 1939, the judge who heard the case entered an order in which it is recited that one of the attorneys for the defendants "made oral application *Page 583 to the court in chambers at Portland, Oregon, on the twenty-fifth day of April, 1939, for sixty days' time in addition to that allowed by law, in which to file a bill of exceptions in the within cause". The order further recites that, "it appearing . . proper that such additional time be granted, the court at said time and place granted said application, and announced that such additional time was granted, and as evidence of such allowance on said twenty-fifth day of April, 1939, in chambers at Portland, Oregon, signed an order granting such additional time and delivered such signed order" to the attorney for the defendants for transmission to the clerk of the circuit court for Tillamook county, for filing and entry; and that such order was forwarded by that attorney to an associate attorney at Tillamook, Oregon, and through inadvertence was not presented to the clerk for filing until May 24, 1939. It is then directed that the order made April 25, 1939, be entered nunc pro tunc as of April 25, 1939. In the certificate to the bill of exceptions the court states that the purported bill of exceptions was served upon the attorney for the plaintiff and presented to the circuit court on June 24, 1939, and that on that date counsel for the plaintiff served and filed objections to the allowance of the bill of exceptions for the reason that the same had not been filed within the time allowed by law. The certificate further recites the making of the order of April 25, 1939, granting to the defendants sixty days' additional time in which to present a bill of exceptions, the handing of such order by the court to the attorney for the defendants for transmission to the clerk of the circuit court for Tillamook county for entry, the failure to have the same filed before May 24, 1939, and the making and entry of the *Page 584 order of July 19, directing that the order signed April 25, 1939, be entered nunc pro tunc as of that date. Section 2-703, Oregon Code 1935 Supplement, provides in part as follows: "A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within sixty [60] days after the entry of the judgment or decree, or within such further time as may be granted by order of the court if application is made during the said period of sixty [60] days or within any extension that may be granted." The law does not, as evidenced by the above quoted excerpt, require that if application for an extension of time be made within sixty days from entry of the judgment, the order granting additional time must be entered within the sixty days. In Hart v. State Industrial Accident Commission, 148 Or. 692,38 P.2d 698, this court, after reviewing its decisions touching upon the matter of time within which a bill of exceptions may be settled and signed by the circuit court under the law as it existed prior to the 1931 amendment (Oregon Laws 1931, chapter 49), which is codified as § 2-703, supra, referred to that amendment and the decisions construing it. The court then said: "Based upon the 1931 amendment and the three cases last above cited, we hold that it is mandatory upon a litigant seeking to have a bill of exceptions settled by the trial judge to tender the same within sixty days after the entry of the judgment or within such further time as may be granted by order of the court upon application for such extension made during the said period of sixty days or within any extension of time that may have been granted." *Page 585 Immediately preceding the excerpt quoted, with reference to the case of State v. Terwilliger, 141 Or. 372, 11 P.2d 552,16 P.2d 651, 661, the same opinion states: "After reviewing the history of these amendments to the statute relating to the tendering of a bill of exceptions, the court allowed the motion to strike the bill of exceptions from the files, for the reason that the 1931 amendment of § 2-703, Oregon Code 1930, required the same to be tendered within sixty days from the date of entry of judgment, or such time as might be specified by order of the court upon application made within the said sixty days." Counsel for the respondent cites and relies upon Bird v.Ellingsworth, 156 Or. 103, 59 P.2d 261, 65 P.2d 674, to sustain his contention that no extension granted by the court is effective unless the order providing for it is entered within the sixty days allowed by statute for tendering a proposed bill of exceptions. In that instance no motion was filed or application made for an extension of time until more than sixty days after the entry of judgment, and this court held that the motion was not filed within the time limited by § 2-703, Oregon Code 1930, as amended by chapter 49, Oregon Laws 1931. The question of when the order must be entered was not there directly involved. The statutory provision relating to the granting of an extension of time within which a proposed bill of exceptions may be tendered differs materially in wording from the provision regarding extension of time within which a transcript on appeal may be filed in the supreme court. In the latter case, it is provided by § 7-507, subdivision 2, Oregon Code 1930, that the time in which a transcript must be filed in the supreme court may be extended by order of the court, "but such *Page 586 order shall be made within the time allowed to file the transcript, and only after three days' notice has been given to the opposing party". Hollywood Orchards Company v. Dennis, 124 Or. 71,240 P. 881, 263 P. 66, cited by the respondent as indicating that the order granting an extension of time must be entered before the expiration of the statutory period, had reference to an extension of time for filing a transcript and did not concern an extension of time for presenting a proposed bill of exceptions. Had the legislature intended that an extension of time beyond sixty days, in which to file a bill of exceptions, would be effective only in the event that the order was made before the expiration of that period, it would undoubtedly have used language similar to that found in § 7-507, supra. In our opinion, the legislature did not intend that in instances in which application for an extension of time to file a bill of exceptions is made within sixty days after entry of the judgment the order granting such extension must be made and entered before the expiration of that sixty-day period. In other words, the order can be made and entered after the sixty days, provided application for an extension of time has been made prior to the expiration of sixty days following entry of judgment. Section 2-703, supra, does not provide that an application for extension of time within which to file a bill of exceptions must be made in writing, and our attention has not been directed to any other statute or any rule of the circuit court for Tillamook county requiring such an application to be in writing. Rule 5 of that court, which provides that "copies of all papers filed in a cause must be served on the attorney of the adverse party whenever such party has appeared by *Page 587 attorney", has no bearing upon orders entered pursuant to oral motions or oral applications. In view of the conclusion that we have reached herein, it is not necessary to express an opinion in regard to other questions raised by both the respondent and the appellants. The motion to expunge the bill of exceptions is denied. Argued February 27; reversed May 14; rehearing denied June 18, 1940 ON THE MERITS (102 P.2d 197)