Litscher v. Alexander

Mr. Justice Burnett delivered the opinion of the court. It is provided in Section 426, L. O. L., that “when judgment or decree is given for the foreclosure of any mortgage, hereafter executed, to secure payment of the balance of the purchase price of real property, such judgment or decree shall provide for the sale of the real property, covered by such mortgage, for the satisfaction of the judgment or decree given therein, and the mortgagee shall not be entitled to a deficiency judgment on account of such mortgage or note or obligation secured by the same.” 1. No bill of exceptions appears in the record. It is true that the judge has certified a transcript of all the testimony presented at the trial, excepting only certain exhibits; but it is not even styled a bill of exceptions and cannot be considered for that purpose: Ready v. United Rys. Co., 57 Or. 325 (100 Pac. 658, 108 Pac. 197); Hahn v. Mackay, 63 Or. 100 (126 Pac. 12, 991); Portland Pub. Market etc. Co. v. Woodworth, 67 Or. 327 (135 Pac. 529); West v. McDonald, 67 Or. 551 (136 Pac. 650). [372] 2. No motion for findings in addition to those quoted from the judgment entry appears in the record. In Freeman v. Trummer, 50 Or. 287 (91 Pac. 1077), Mr. Justice Moore states the rule thus: “When a defendant controverts the allegations of a complaint by his answer and also sets up facts intended to constitute a complete defense to the cause of action stated, he thereby presents a theory of the case that is usually inconsistent with the plaintiff’s hypothesis, and the adoption of either legal principle by the court, after a trial of the issue without a jury necessarily implies a rejection of the theory of the adverse party. If the findings of fact in such a case conform to the proposition, as evidenced by the material controverted averments of either party, and aré adequate to uphold the judgment based thereon, the conclusion reached, as the result of a judicial investigation, is sufficient in law, though no findings are made' in respect to the theory of one of the parties: Lewis v. First Nat. Bank, 46 Or. 182 (78 Pac. 990); Jennings v. Frazier, 46 Or. 470 (80 Pac. 1011.) ” Under this rule and the state of the record before us, there is nothing indicating that the note in question was in fact a purchase money instrument and consequently nothing to which we can apply the contention of the appellants. The judgment is affirmed. Affirmed: Rehearing Denied. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur,