Smith v. Algona Lumber Co.

Mr. Justice McNary delivered the opinion of the court. This is a motion to dismiss an appeal for various assigned reasons; the material ones alone being herein considered. On October 6, 1913, appellant filed with the clerk of this court a collection of documents bearing the legend, “Original files on appeal,” consisting of the original complaint, amended complaint, summons, demurrer, answer to amended complaint, reply, verdict of jury, judgment, cost bill, notice of appeal, undertaking and order of the Circuit Court extending the time of filing the transcript of record. Attached thereto is a sufficient certification and authentication by the county clerk. 1. Plaintiff’s counsel, in his motion to dismiss, urges with much fervor that this character of record does not satisfy the statute, and is insufficient to confer jurisdiction on this court to hear and determine the matters arising on the appeal, citing Section 554, L. O. L., as amended by Chapter 320 of the General Laws of Oregon for 1913: “Upon the appeal being perfected [4] the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript of such an abstract as the law or the rules of the appellate court may require, of-so much of the record as may be necessary to intelligibly present the question to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal. ’ ’ The thought of counsel is that the files on appeal are not certified to by the clerk to be copies of or a transcript of the original documents, and in consequence thereof this court is without jurisdiction to hear the cause. The word “transcript” in its usual and restricted acceptation means an exemplification, and, as applied to a transcript of record, denotes a writing or composition consisting of the same words as the original. But the legislature has seen fit to define the term differently in its relation to an appeal, as, “such an abstract as the law or the rules of the appellate court may require, or so much of the record as may be necessary intelligibly to present the question to be decided”: Backhaus v. Buells, 43 Or. 558 (72 Pac. 976, 73 Pac. 342). 2. Significantly bearing upon this question is the legislative enactment found in Chapter 335 of the Session Laws of 1913, which provides: 4 4 When an appeal is perfected the original pleadings and the original bill of exceptions shall be sent by the clerk, or other proper officer of the trial court, to the clerk of the Supreme Court or' appellate court, and shall be a part of the transcript in the Supreme Court or appellate court so long as it may be needed there, and if the said papers are later required for use in the trial court, said papers shall be returned to the trial court and kept of record therein, the object being to require one original record [5] to answer the purpose of each court, and the Supreme Court or appellate court is instructed to promulgate the necessary rules for the custody of the original record to accomplish this purpose. ’ ’ Construing the two enactments together, and keeping in mind the evident intent of the law body to curtail the record on appeal and render less burdensome the costs incident thereto, we are free to declare that a party appellant has complied with the statutes when he has caused the clerk, or other proper officer of the trial court, to send the original pleadings and the original bill of exceptions to the clerk of this court. It would be a work of supererogation to require the appellant to transmit to this court both the original pleadings and copies thereof. However, the term “pleading ’ ’ is not sufficiently elastic to embrace the judgment or decree appealed from, the notice of appeal and proof of service thereof, and the undertaking on appeal; and for that account copies of these documents, rather than the originals, must be supplied agreeably to the provision of Section 1, of Chapter 320, supra. 3. Pending the disposition of the motion to dismiss, appellant suggested to the court a diminution of the record, and asked for a rule on the clerk of the Circuit Court to transmit to this court copies of the original judgment, notice of appeal and proof of service thereof, and undertaking on appeal, which it is alleged were omitted from the transcript by misapprehension of the county clerk as to the effect of Chapter 335, supra. The foundation of this request of respondent is in Rule 40 of the rules of the Supreme Court (117 Pac. xiv), promulgated in 1911, which is, in substance, a replication of Section 555,L.O.L.: “For the purpose of correct ing any error or defect in the transcript from the court below, either party may suggest the same, in writing, [6] to this court, and, upon good canse shown, obtain an order that the proper clerk certify np the whole or part of the record, as may be required; or the same may be corrected by stipulation of counsel, in writing, filed with the clerk before argument. If the attorney of the adverse party be absent, or if the fact of the alleged error or defect be disputed, the suggestion must be accompanied by an affidavit showing the existence of the error or defect alleged.” Counsel for respondent urges the want of jurisdiction on account of the omission of the documents hereinbefore specified, while counsel for appellant insists this court has jurisdiction by reason of having in its custody all of the original documents, including those papers of which it is maintained copies should have been made. We think the failure of the clerk to include in the transcript copies of the judgment, notice of appeal and proof of service thereof, and undertaking on appeal, is not jurisdictional, in view of the fact that this court is in possession of the originals, and which fact distinguishes this case from the one of Burchell v. Averill Machinery Co., 55 Or. 113 (105 Pac. 403). In that case the judgment appealed from, notice of appeal and proof of service thereof, and the undertaking on appeal were not included in the abstract. This court held the omission of these essential requirements could not be supplied by amendment because they were jurisdictional. In this case no essential part of the record is omitted. The form of a part of that record is not as required by statute, and to dismiss an appeal for nonobservance of form when the substance is supplied would be carrying the rule beyond reason, and giving effect to form rather than substance. While vexatious appeals should be discouraged, yet the opportunity for litigants to have their [7] issues tried in the higher courts should not be hindered by technical constructions, which too frequently lead to the subversion of justice. Respondent contends that this appeal should be dismissed for further reason that he was not apprised, by 10 days ’ notice, of the settling of the bill of exceptions. We are not aware that the statute or rules of court require any notice to be given when the bill of exceptions is to be presented to the trial judge for allowance. The record here shows the attorney for respondent was given several days’ notice, though falling short of 10 days. Good practice suggests that the bill of exceptions be settled at a time convenient to all concerned, yet not sufficiently remote as to render dim the remembrance of the facts adduced at the trial. Other objections are interposed, but we deem them not fatal to this appeal. The motion to dismiss will be denied, and appellant’s suggestion for a diminution of the record will be allowed, and the rule issued to supply copies of the record adverted to, with direction to return the originals thereof to the clerk of the trial court. Motion to Dismiss Denied. Motion to Supply Record Allowed.