Henrichsen v. Smith

Per Curiam. 1. From this statement it will be seen that the question sought to be determined in this proceeding is the validity of the order of Judge McGinn setting aside the judgment and granting a new trial, but we have no jurisdiction to determine that question. Under the statute this court does not acquire jurisdiction to hear and determine a cause unless the transcript is filed by the second day of the ensuing term after the appeal is perfected, or within such further time as may be allowed in the manner provided by law: Hill’s Code, § 541. The requirements of this section have not been complied with, and hence the court is without jurisdiction. 2. In case of an abandoned appeal, it has been the practice since Hadley v. Heatherly, 2 Or. 117, for respondent to bring into this court certain portions of the record, and have the judgment affirmed pro forma, and out of this practice has grown what is now Rule 14, but it has never been supposed that by such a proceeding it acquired jurisdiction to hear and determine .the cause or any question at issue therein. This practice simply provides a means by which respondent may have the fact that an appeal has been abandoned made a matter of record, but it cannot be used for the purpose of determining any controverted questions in the case. By the order of Judge McGinn, which, for the purpose of the case, must be assumed to be valid, the judgment from which the appeal was taken ceased to exist, and the defendant was not required to file [478] a transcript, and hence the rule in reference tc abandoned appeals does not apply. It follows that the motion must be denied, and it is so ordered. Decided April 6, 1896. On Motion to Dismiss Appeal. This is a motion to dismiss an appeal. The record discloses that on March fourth, eighteen hundred and ninety-five, the defendants attempted to appeal from a judgment rendered against them in favor of plaintiff, by serving and filing a notice and undertaking therefor; that on May fourth, an order having been first made extending the time for submitting a bill .of exceptions, the term of court at which the said judgment was rendered was adjourned sine die; that on May twenty-second, and two days after the expiration of the time limited therefor, the defendants presented to the late Judge Hurley, who tried the action, their bill of exceptions, whereupon the court made an order permitting the plaintiff to suggest corrections or make objections thereto; that on July- twentieth, and after the usual order had been made continuing to the next term all actions, suits, and proceedings then pending in said court, the May term thereof expired by adjournment. On September tenth Judge Hurley died, without having signed the bill of exceptions, and was succeeded in the office by Judge Henry E. McGinn, who, having no knowledge of the history of the trial except such as was obtainable from an inspection of the official stenogrphic reporter’s certified report thereof, declined to sign the bill of exceptions, and, upon motion of the defendants, set aside the judgment and granted a new trial, from which last order the plaintiff appeals. [478] Motion to Affirm Denied. Dismissed. For the motion there was an oral argument by Mr. T. Harris Bartlett. Contra there was an oral argument by Mr. Roácoe It. Qiltner. Per Curiam. 3. The defendants’ counsel, in support of the order, contends that it is not a final judgment, and therefore not appealable; while the plaintiff’s counsel insists that, the term of court at which the judgment was rendered having expired, the order permitting the defendants to thereafter submit a bill of exceptions was not such a proceeding as would authorize .the court at a subsequent term to vacate the judgment, and, having done so, its order is a void judgment, to correct which an appeal will lie. The question presented for consideration involves the power of the court to make the order complained of, for it must be concluded that if the court at the time it was made had the authority to vacate the judgment and grant a new trial, its order to that effect did not terminate the action, and is not appealable: [Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309); McBride v. Northern Pacific Railroad Company 19 Or. 64 (23 Pac. 814); Beekman v. Hamlin, 23 Or. 313 (10 L. R. A. 454, 31 Pac. 707);] [480] but, if the court had lost jurisdiction of the judgment, it was without power to set it aside, and its order in that respect is a void judgment, and therefore reviewable on appeal: Trullenger v. Todd, 5 Or. 36; Hume v. Bowie, 148 U. S. 245 (13 Sup. Ct. 582); Deering v. Quivey, 26 Or. 556 (38 Pac. 710). In Bronson v. Schulten, 104 U. S. 410, Mr. Justice Miller, in discussing the power of a court at a subsequent term to vacate its judgments, says “That after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them.” The doctrine announced in that case was approved in Deering v. Quivey, 26 Or. 556, (38 Pac. 710,) and has become the rule of practice in this state; and the only inquiry remaining is whether the court, by the order permitting the defendants at a subsequent term of the court to present their bill of exceptions, retained jurisdiction over the judgment. The service of the notice of appeal, and filing the same with an undertaking therefor, manifest an intention to take an appeal, and the order extending the time beyond the term must be considered as a step taken to modify or correct judgment, and, having- been made before the adjournment of the term, kept the cause in the “breast of the court,” and jurisdiction of the judgment was thereby retained. 4. Nor could the failure of the defendants to submit their bill of exceptions within the time limited defeat the right to vacate the judgment, or [481] exhaust the power of the judge thereafter to sign the bill of exceptions: Che Gong v. Stearns, 16 Or. 219 (17 Pac. 871). Indeed, counsel for the plaintiff admits in the argument that by mandamus the judge could have been compelled to settle and sign it. 5. There is quite a conflict of judicial authority as to the proper person to sign a bill of exceptions under the conditions hereinbefore stated: 3 Ency. of Pleading and Practice, 455. In England it is held that if a party, without his fault, lost the benefit of his bill of exceptions by reason of the death of the trial judge, the judgment should be set aside and a. new trial ordered: Newton v. Boodle, 54 Eng. Com. Law Rep. 794. So, too, in Benett v. Steamboat Company, 81 Eng. Com. Law Rep. 28, it was held that if a party, by reason of the ill .health of the trial judge, was unable to obtain his signature to a bill of exceptions, a new trial must be granted. In Michigan, prior to the passage of the statute making the reporter’s extended notes evidence from which the successor of the trial judge may sign a bill of exceptions, it was held that if the judge who tried the action died, resigned, or his term of office expired, without having signed the bill, the judgment must be set aside, and a new trial ordered: Scribner v. Gay, 5 Mich. 511; Tefft v. Windsor, 17 Mich. 425; People v. Judge of Superior Court, 40 Mich. 630; Stebbins v. Field, 41 Mich. 373; People v. Judge, 41 Mich. 726 (49 N. W. 925). In Indiana, however, it has been held that the successor of the judge who tried the action was the proper person [482] to sign the bill of exceptions, but Judge Elliott, whose learning added luster to the court of - that state, in his work on Appellate Procedure, § 799, criticizes the decisions to that effect and says: “ It is difficult for us to escape the conclusion that the courts are right which hold that the successor of the judge who tried the case cannot sign a bill of •exceptions where there is a disputed question of fact, that is, a dispute as to what the bill should •contain, and that the proper course where there is no judge who. can sign is to award a new trial.” 6. A mandamus will not be issued to compel the successor of the judge who tried the action to sign a bill of exceptions, in the absence of a statute making' the extended notes and certified report of the official reporter conclusive evidence of the facts therein settled: Merrill on Mandamus, § 194. The act creating the office of official court reporter in this state provides that his notes, when transcribed and certified to by him as being correct, shall be deemed prima facie so, (Laws, 1889, p. 144,) but it is not provided that such report shall be sufficient evidence from which the successor of the judge who tried the action shall settle and sign a bill of exceptions. The exceptions, when signed, import absolute verity, and, in the absence of a statute declaring the report and certificate of the official reporter of that high character, it would be difficult indeed, in case of a disputed issue of fact, for a judge who had not heard or given attention to the trial of an action to so certify. There is nothing [483] before us to show that the bill of exceptions presented a disputed issue of fact to be settled by the judge, but it must be presumed that such was the fact, and if it is not so, the action of the court in setting aside the judgment might be an irregularity which could be reviewed upon appeal in case judgment should subsequently be rendered against the plaintiffs. It follows that the motion is allowed, and the appeal dismissed. Dismissed.