Bibber v. Fields

Opinion by Mr. Justice Bean. The notice of appeal contains numerous assignments of error, but as the greater portion of them seem to be based upon some supposed ruling of the trial court which is not made a matter of record by the bill of exceptions or otherwise, they are unavailable on appeal, and will be passed over without further notice. 1. The first question presented by the record is as to the correctness of the action of the trial court in overruling the defendant’s motion to strike out the affirmative matter in the reply, and in not sustaining a demurrer thereto. The defendant contends that such affirmative matter is inconsistent with, and enlarges, the cause of action stated in the complaint, and is in effect stating a • new cause of action. In this he is manifestly mistaken; the new matter in the reply is pleaded solely as a de-' fense to the counterclaims set up by the defendant. No affirmative relief is asked or demanded, nor upon the facts pleaded would plaintiff be entitled to such relief, be»cause it is purely defensive in its character, and is so pleaded. The affirmative matter is simply a statement that certain items pleaded as a counterclaim were fully paid and discharged before the commencement of the action, and that, by the arrangement under which the plaintiff and family occupied the house, no rent was to be charged or paid therefor. . The rule of law that a reply cannot change or enlarge the character of the action stated in the complaint, or be used to supply omissions of necessary averments therein, is well settled and not [530] disputed, but it has no application to this case. The plaintiff by his reply had a right to allege any new matter not inconsistent with the complaint, constituting a defense to any affirmative matter pleaded in the answer, and that is all he did in this case. 2. Several other assignments of error relate to the supposed action of the trial court in overruling defendant’s motion to set aside the report of the referee, and in sustaining divers and sundry rulings made by him during the progress of the trial; but as such alleged errors do not appear by the bill of exceptions and the report of the referee, and the motion to set it aside, being no proper part of the transcript ( Osborn v. Graves, 11 Or. 525, 6 Pac. 227), we have no means of ascertaining whether the errors assigned in the notice of appeal are well founded or not. It was earnestly insisted at the argument that the case of Osborn v. Graves is founded upon a misconception of the statute, and ought to be overruled. If the question was res integra I am not prepared to say what view the court, as now constituted, might entertain^ but as it is only a question of practice we do not feel authorized to disturb that decision, whatever doubts we may entertain as to its soundness. It is true the record in this case does contain what purports to be a bill of exceptions, but it goes only to alleged errors of the referee, and not to any ruling claimed to have been made by the trial court. Nor does it appear from the bill of exceptions that the alleged errors of the referee were presented to or passed upon by the trial court, or urged as an objection to the confirmation of the report. If the defendant was dissatisfied with the rulings of the court in confirming the report of the referee, or in overruling his objections thereto, or in sustaining some ruling or want of ruling of the referee, made during the progress of the hearing before him, he should have embodied the same in the bill [531] of exceptions, and, not having done so, we have no alternative but to affirm this judgment. Affirmed.