St. Helens Lumber Co. v. Evans

OLSON, J. 1. No bill of exceptions was filed by plaintiff. Two typewritten sheets signed by the court reporter, purporting to state what occurred upon the presentation of plaintiff’s motion to dismiss appeal, accompany the transcript. These sheets are not called a bill of exceptions. They lack the certificate of the trial judge and wholly fail to fulfil the requirements of a bill of exceptions. 2,3. The only thing before us therefore is the original papers and these on their face are regular, with the .exception that the docket of the Justice Court shows no entry of allowance of appeal. This, however, does not defeat an appeal otherwise regular: Jacobs v. Oren, 30 Or. 593 (48 Pac. 431). Moreover the docket does contain a reference to the appeal being taken and an order discharging attachment upon the giving of the appeal bond, which is probably equivalent to [73] docket entry of allowance of appeal. The motion is further based upon the contention that the certificate was defective under Section 2463, L. O. L., which provides that the transcript shall contain a copy of all the material entries in the justice’s docket. The certificate in this case states that the transcript contains all the entries and the use of this broader term certainly includes the restrictive term “material.” 4, 5. As to the general point of the motion, such motion has no affidavit attached. "We have no bill of exceptions in order to show what transpired in the lower court, other than what is shown by the record. We find the original papers attached to the transcript, a sufficient certificate of the justice that the transcript contains all the docket entries and all .the original papers attached thereto, and so we must presume that the action of the trial court was regular in the absence of any affirmative showing on the part of appellant. It is well settled that it is within the discretion of the trial court after an appeal has once been taken, to cause papers omitted'from the record to be attached thereto, and in the absence of any affirmative showing to the contrary it will be presumed that the' court acted regularly and within the powers granted him. Judgment affirmed. Afeirmed.