Meaney v. State Industrial Accident Commission

[374] COSHOW, J. Within thirty days after giving notice of appeal the appellant filed a transcript in this court. Within twenty days thereafter, appellant filed a printed abstract and brief under one cover. The printed abstract contains only the judgment rendered in the Circuit Court so far as the record discloses. That judgment includes the verdict of the' jury. It contains some other matters, which respondent alleges are not in the record. There is, therefore, a printed abstract of record on file in this court. If the respondent is not satisfied with the printed abstract, he should avail himself of the privilege granted under Rule 7 of this court, 100 Or. 745. It is not objectionable that the abstract of record is included under the same cover with appellant’s brief. Where the record is short and the brief small, it is economical to include both documents under one cover where that can be done conveniently. The respondent is in no way injured thereby. It is not necessary, under the rule of the court or the statute, for the appellant to have filed a bill of exceptions or transcript of evidence in advance of filing an abstract of record and his brief: Rickey v. Ford, 2 Or. 251; Pittman v. Pittman, 3 Or. 472. The bill of exceptions is not a prerequisite to the submission of the cause on appeal in this court. When no bill of exceptions is prepared, the questions to be considered by this court are limited; but the jurisdiction of the court does not depend on a bill of exceptions or the transcript of evidence in an appeal from a judgment at law: Nosler v. Coos Bay etc. Nav. Co., 40 Or. 305 (63 Pac. 1050, 64 Pac. 855). The third cause assigned for dismissing the appeal is directed rather to the merits of the case [375] than to a failure on the part of appellant to follow the procedure prescribed for conferring jurisdiction on this court. It has been repeatedly held in this court, that the merits of the case will not be considered on a motion to dismiss an appeal: Stacey v. McNicholas, 76 Or. 167, 173, 175 (144 Pac. 96, 148 Pac. 67); Mendenhall’s Will, 43 Or. 542 (72 Pac. 318, 73 Pac. 1033). The motion to dismiss is denied with permission to renew it when the case is presented on its merits. Motion Denied.