Nicholas v. Yamhill County

BENNETT, J. This is a motion to dismiss the appeal in the above-entitled cause upon the following grounds: First: That the original pleadings have not been sent up, as required by Chap. 335, Laws of 1913. Second: The appellant has not filed a transcript of the evidence heard in the trial court. Third: The appellant has not served the printed abstract upon the attorneys for respondent, as required by Rule 6 of this court. Fourth: That the printed abstract of record is not sufficient because it does not include a copy of the — 618 — pleadings, and is not sufficient to give the court a full understanding of the questions presented for decision. It appears from the affidavit of the attorney for respondent that, the pleadings in the original cause in the lower court were very voluminous, the complaint and answer alone constituting more than 30 pages of typewritten matter. The printed abstract filed by the appellant is very brief, and does not give a. complete copy of any of the pleadings in the case, but only such summary as appellant seems to deem necessary for an understanding of the question which he presents. The appellant contends, however, that the abstract is sufficient to give the court jurisdiction, and asks for an order requiring the clerk of the court below to send up the original pleadings. While the abstract is by no means satisfactory, and probably is insufficient to present some of the questions relied upon by the appellant, yet we think it is enough to clearly present to the court at least one question — the question of the constitutionality of Chap. 170, Laws of 1915, under which the tax proceeding sought to be enjoined was prosecuted. Section 1 of Chap. 335, Laws of 1913, is as follows: “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 to answer the purpose in each court, and the Supreme Court or appellate court is instructed to promulgate the — 619 — necessary rules for the custody of the original record to accomplish this-purpose.” And Section 554, L. O. L., as amended by Chap. 320, Laws of 1913, provides in subdivision 1: “If the appeal is from a decree and the cause is to be tried anew on the testimony, the clerk shall attach together the testimony, depositions, and other papers on file in his office containing the evidence heard or offered on trial in the court below, and deliver the same to the appellant, taking therefor his receipt in duplicate, one of which receipts he shall file in his office and the other deliver to the respondent when so requested. Such evidence shall be deemed a part of the transcript or abstract and shall be filed therewith.” Rule 11 adopted by this court (89 Or. 715, 173 Pac. ix), providing for the form of an abstract, is as follows : ‘ ‘ Set out all of the complaint necessary to an understanding of the questions to be presented to this court, and no more. In setting out exhibits, omit all merely formal irrelevant parts.” And in relation to the answer: “Here set out so much of the answer as may be necessary to explain the questions raised on the appeal, and no more, omitting all formal parts.” 1. We think that the transcript in the case, while incomplete and unsatisfactory, is sufficient to give the court jurisdiction. 2. We also think an order should be issued from this court, directed to the clerk of the court below, requiring him to send up the original pleadings and to prepare the exhibits and depositions and turn them over to the attorneys for appellant, as required by the above enactments. — 620 — In Smith v. Algona Lbr. Co., 73 Or. 1, 6 (136 Pac. 7, 9, 143 Pac. 921), it is said in an opinion by Mr. Justice McNaky: “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 issues tried in the higher courts should not be hindered by technical constructions, which too frequently lead to the subversion of justice.” And the latter paragraph of this language is quoted and followed in an opinion by Mr. Justice Harris in State v. Rider, 78 Or. 318, 320 (145 Pac. 1056), in which the court refuses a motion to dismiss and further says: “At least one phase of the case can be submitted on appeal without the presence of a bill of exceptions, and even though other questions discussed in the brief could not be considered without the evidence and a bill of exceptions. If plaintiff deemed the abstract imperfect or unfair, an additional abstract could have been filed, as provided by Eule 7.” As to the service of the printed abstract upon the respondents, Eule 6 of this court (89 Or. 712, 173 Pac. viii) requires: “Within twenty days after the transcript is filed in a civil case the appellant shall serve upon the attorney for each respondent a printed abstract, prepared as hereinafter provided, containing a copy of so much of the record, as may be necessary to a full understanding of the questions presented for decision, and within five days after service of the abstract the appellant0 shall file with the clerk of this court sixteen copies thereof, accompanied with proof of — 621 — such service. In case of cross-appeals, the party first giving notice of appeal shall be considered the appellant under this rule. In criminal cases, a printed abstract may be served and filed, or not, as the appellant may elect. No case shall be docketed for hearing unless this and other rules are complied with, except by order of the court.” In this case the transcript appears by the record to have been filed in this court on the twenty-third day of July, and the printed abstract was filed on the thirteenth day of August, accompanied by the following proof of service: “I, H. B. Nicholas, one of the attorneys for appellant, do hereby certify that on the 11th day of August, 1920, I mailed at the postoffiee in Portland, Oregon, a copy of this abstract, addressed to R. L. Conner, McMinnville, Oregon; postage thereon being fully prepaid, all in accordance with the regulations of the United States postoffice. “H. B. Nicholas, “Attorney for Appellant.” This transcript, in the regular course of mail, would have reached McMinnville, on the 12th of August, which would have been sufficient. Even if it reached there on the 13th it would have been sufficient under the repeated decisions of this court. The showing of the respondent as to whether he received this abstract, and as to when, if he did receive it, is equivocal, and he says in his brief: “If same was so mailed by appellant, or his attorney, it did not reach the hands of the attorney for respondents until some time after the 20 days • had expired following the filing of the transcript, and even if it were considered that placing same in the postoffice would constitute a service thereof, it was not made within the time prescribed by Rule 6.” — 622 — Section 540, L. O. L., provides: “Service by mail may be made, when the person for whom the service is made, and tbe person on whom it is to be made, reside in different places, between which there is a communication by mail, adding one day to the time of service for every fifty miles of distance between the place of deposit and the place of address.” 3. The court will take judicial knowledge that Mc-Minnville is less than fifty miles from Portland. 4. We do not thing any good purpose could be served by such a strict construction of Rule 6 as would shut out the appeal in this case. The motion to dismiss is denied, and it is ordered that the clerk of the lower court be required to send up the original papers in the case, as hereinbefore indicated. Motion Denied. Second Motion to Dismiss Appeal Denied.