Abercrombie v. Heckard

Opinion Per Curiam. This is a motion to dismiss an appeal. There is no bill of exceptions, and the casé comes up on the transcript, which is accompanied by the reporter’s copy of the testimony. In the transcript it appears that a motion for a new trial was filed and overruled by the court. The principal ground for the motion was the alleged refusal of the court to admit in evidence a certain alleged receipt in full for the amount of plaintiff’s bill, signed by L. R. Abercrombie. 1. No appeal lies from the refusal of the court to grant a new trial: State v. Gardner, 33 Or. 149 (54 Pac. 809): McCormick Machine Co. v. Hovey, 36 Or. 259 (59 Pac. 189); Crossen v. Oliver, 41 Or. 505 (69 Pac. 308). [105] 2, 3. The appellants state the issue 'in their brief as follows: “The only question at issue in this cause is the admissibility of the receipt offered to be introduced in evidence of the payment of the claim of plaintiff. This was incorporated in the motion for a new trial, which appears of record. The motion for a new trial was overruled, and from that decision the defendant appeals.” Upon that theory, they have no standing in the court upon appeal. The alleged receipt did not become a part of the record because an alleged copy of it was incorporated in the motion for a new trial. There is only one way to bring before this court any evidence offered and rejected in the court below, and that is by incorporating it in' a bill of exceptions, either by a copy included therein or by making it an exhibit thereto. Section 171, L. O. L., provides: “The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more.” Article VII, Section 3 of the Constitution, as amended, provides: “Until otherwise provided by law, upon appeal of any case to the Supreme Court, either party may have attached to the bill of exceptions the whole testimony,” etc. While the reporter’s transcript and other papers purporting to be parts of the testimony accompany the transcript, they are not properly here, nor do they bear that authentication by the court which a properly prepared and signed bill of exceptions would give them. Therefore we cannot look into the purported testimony to ascertain the relevancy of the papers offered and rejected. No objection was made to the sufficiency of the pleadings or to the jurisdiction of the court, and the appeal will be dismissed. Appeal Dismissed.