Leavengood v. McGee

Opinion by Mr. Commissioner Slater. 1. At the hearing in this court a motion to dismiss the appeal was entered by plaintiff on the ground that the original testimony, and other papers in this cause, on which the decree of [236] . the circuit court was based., had not been transmitted to the clerk of this court as required by Section 553, subd. 1, B. & C. Comp., and by Rule 1 of this court: 35 Or. 587 (37 Pac. -v). Before argument thereon defendants filed a counter motion, supported by an affidavit, for an order on the county clerk of Douglas County requiring him to complete the record by forwarding all the testimony and exhibits produced at the trial in the court below. A transcript in this ease was filed in this court on June 15, 1906, which, besides the pleadings, includes copies of the findings, the decree, notice of appeal and undertaking on appeal. No question is made by plaintiff that any of the necessary steps to perfect the appeal were omitted or were not taken in the time required by law to confer jurisdiction upon this court of the cause, and the filing of such a transcript here did confer jurisdiction. The filing of the testimony was not necessary to confer jurisdiction, and its absence would not destroy that jurisdiction, for there may be questions arising upon the pleadings to be tried on appeal, as well as whether the decree is supported by the pleadings and'the findings; but the absence of the testimony would prevent this court from trying the case de novo on the facts. For appellants there was a brief and an oral argument by Mr. Commodore Stephen Jackson. ¡For respondent there was a brief over the names of C. I. Leavengood and Fullerton & Orcutt, with an oral argument by Mr. James Corwin Fullerton. 2. The plaintiff’s motion, however, amounts to a suggestion of a diminution of the record, and the deficiency may be supplied on order at any time before the final disposition of the cause: B. & C. Comp. § 445. The motion, therefore, must be depied, and, the testimony having been received by the clerk •since the submission of the case, it should be ordered filed. Motion Denied.