Johnson v. Berns

HARRIS, J. The plaintiffs prosecuted against the defendants a suit which ended in the Circuit Court in a decree of dismissal. The plaintiffs appealed and filed in this court certified copies of the notice of appeal, undertaking on appeal and decree, together with 274 typewritten pages of transcribed testimony certified to be a complete transcript of the notes taken by the official court reporter. Attached to the transcript are a number of exhibits. The certificate of the county clerk declares that “hereto attached are all of the exhibits introduced in the above cause, that said exhibits are the originals introduced, except where certain records were introduced in evidence with leave to substitute a certified copy, and that hereto attached are all of the [167] certified copies of said records, substituted by the respective parties.” The plaintiffs have also filed a printed abstract. During the trial the defendants offered in evidence certain pages of county deed records containing the record of a certain contract and of two designated deeds, and the defendants also introduced in evidence the pleadings in two other lawsuits, with leave to substitute certified copies of the records and original papers so introduced. The plaintiffs wrote to one of the attorneys for the defendants requesting that the defendants cause certified copies to be prepared and filed so that they could be included in the transcript when filed in this court; but the defendants replied to the effect that they did not believe it to be their duty to supply the certified copies. The plaintiffs then filed their transcript and printed abstract, and thereupon the defendants moved to dismiss the appeal on the ground that because of the absence of copies of the contract, two deeds and pleadings the court was without jurisdiction to hear the appeal. The plaintiffs, although insisting that it was incumbent upon the defendants to supply certified copies of the records offered by the defendants, requested that they be permitted to supply the certified copies if the court concluded that the defendants were not obliged to furnish them. Clearly the plaintiffs have filed a record sufficient to confer jurisdiction upon the appellate court, although it is true that this court might not, because of the absence of some evidence, be enabled to do more than to pass upon the sufficiency of the pleadings. It was the duty of the plaintiffs to supply certified copies of the deed records and of the pleadings in the other two lawsuits just [168] as it was their duty to cause the testimony of the witnesses for the defendants to he transcribed. If the plaintiffs prevail on the appeal they can include in their cost bill, if allowed costs and disbursements, the expense of the certified copies. The plaintiffs have appealed in good faith and their motion for permission to supply certified copies is allowed, while the motion -of the defendants for a dismissal is denied: See Section 555, Or. L. Motion Denied. For appellants there was a brief over the name of Messrs. Botts & Winslow, with an oral argument by Mr. George P. Winslow. For respondents there was a brief over the names of Mr. S. S. Johnson and Mr. Webster Holmes, with an oral argument by Mr. Johnson.