Sanborn v. Fitzpatrick

Opinion by Mr. Commissioner King. 1. The first point demanding attention is the sufficiency of the undertaking on appeal, to which it is urged by plaintiff, that the liability thereon is limited to $500. If limited, it is settled that the undertaking is insufficient: State v. McKinmore, 8 Or. 207. But an examination of the undertaking before us, fails to disclose any language therein limiting the liability of either defendants or their sureties. Its provisions follow the wording of the statute, to the effect that appellants and their sureties will pay all damages, costs, and disbursements that may be awarded against them on appeal. True, the sureties only qualify in the sum of $500, but this can in no way be construed as limiting their liability: Wolfer v. Hurst, 50 Or. 218 (91 Pac. 366). The grounds stated in the motion to dismiss are therefore untenable. [460] 2. It is next urged that the exhibits and transcript of the official reporter’s notes should be stricken from the files, on account of the irregularities suggested in the motion. The certificate of the official reporter states, that the transcript is a true and correct copy of his shorthand notes taken at the trial, and of the whole thereof. It will be presumed that where the court appoints an official reporter, and he enters upon the duties of his office, he reports the entire proceedings; and we think it clear from the language used in the certificate to the transcript of his notes, that he intended thereby to state that it includes the entire proceedings had at the trial. 3. Each exhibit is referred to in the evidence reported, designated by a letter as introduced, and the exhibits accompanying the transcript of the pleadings and evidence, are marked in the order indicated in the testimony, with the reporter’s name subscribed thereto, together with the certificate of the clerk attached, properly identifying each exhibit. Section 827, B. & C. Comp., provides that in suits in equity, where it has gone to a decree, the trial judge shall identify the testimony and exhibits within 10 days thereafter. This section also provides that, where the evidence is taken by a stenographer, he shall extend the same and certify to its being a correct transcript thereof, and that all documentary evidence shall be preserved and incorporated in the report of the evidence by the referee. It has been settled by the decisions of this court that the identification required of the trial judge, applies only where the cause is tried before a referee, and not in presence of the court: Tallmadge v. Hooper, 37 Or. 503 (61 Pac. 349, 1127); Hume v. Burns, 50 Or. 124 (83 Pac. 391). But, where the cause is tried before the trial judge, the stenographer, if one is appointed by the court, shall certify to the testimony. 4. Section 553, B. & C. Comp., as well as rule 1 of this court (50 Or. 567: 91 Pac. 7), provides, in effect, that, [461] when the appeal is from a decree, the clerk shall attach together the testimony, depositions, and other papers'on file in his office containing the evidence offered at the trial, and deliver the same to the appellant, taking his receipt therefor in duplicate, which depositions, exhibits, and other papers, under rule 1 of this court, may be certified to by the clerk. It follows that the certificate of the trial judge or reporter is not required to be affixed to the exhibits filed with the transcript, unless the cause is tried before a referee in the absence of the court, in which event the identification by the trial judge is necessary (Tallmadge v. Hooper, 37 Or. 503: 61 Pac. 349), while, if tried before the court, the stenographer’s certificate is required to the transcript of his notes, and the exhibits must be identified by the clerk, as indicated. 5. It is also urged that the testimony and exhibits should be stricken from the files, because not attached together in one volume. A strict construction of the language of the statute would indicate that this should be done. However, the manner of fastening them together is not stated. In the case before us the testimony is bound in book form and in a separate volume, the exhibits in another volume, the transcript of pleadings and other papers in another, and the three volumes held together by being inclosed in large rubber bands. In fact, this is the most convenient and practical manner in which it could have been done. That the law in this respect is directory, and not mandatory, is evident. It is well known that in many equity suits, boxes, and even trunks, have been found necessary to bring here the voluminous, and almost endless number of exhibits, containing, in many instances, portions of machinery, firearms, etc., which would make the attaching of all together, in the manner indicated by a technical construction of the statute, an impossibility. The law does not intend either the impossible or impracticable, and, where the language of [462] the statute would so indicate, it should be held directory, and not mandatory. In the majority of cases the plan indicated by the statute is more convenient; and, in fact, the practice adopted in some districts of copying all of the exhibits into the testimony where offered is safest, and, to say the least, most practicable and convenient for counsel as well as for the court, but such cannot always be done. It is clear, therefore, that some latitude must be allowed in such cases, and that the statute, on questions of this character, should not be strictly construed, where it does not appear that any one has been prejudiced by the acts complained of. Note : This appeal was afterwards dismissed by stipulation of the parties. Reporter. 6. Again, it is insisted that the exhibits should be stricken from the record, because not filed with the clerk of the court below. We find no provision in the statute or rules requiring the exhibits to be thus filed. The official reporter, for the purposes of the particular case in which he is appointed by the court to act, is as much an officer of the court as the clerk, and his duties in reference to the documents and evidence introduced are similar in effect and of equal importance (Tallmadge v. Hooper, 37 Or. 503: 61 Pac. 349), and the stenographer in this case having marked each exhibit as filed, and having designated each by letters thereon with corresponding characters in the testimony, thereby making them easy of identification, this is sufficient. The motion to dismiss and to strike should be denied. Motion Overruled.