Bird v. Ellingsworth

CAMPBELL, C. J.

This cause is an action at law in which judgment was entered in favor of plaintiff-respondent on October 18, 1935. No bill of exceptions was tendered or served within the 60 days thereafter. On January 2, 1936, appellant filed a motion in the trial court asking for an extension of time in which to file and present such bill of exceptions. The trial court took the matter under advisement and, on February 1, 1936, made the following order:

“It duly appearing that the judgment in this cause was entered October 18, 1935, and notice of appeal, together with undertaking on appeal were served on plaintiff by defendant and were filed in this Court on December 13,1935, and the transcript of the testimony and other proceedings duly certified by Fred M. Rose, official reporter of this Court and in this cause upon plaintiff’s attorneys December 23, 1935, and application having been made on January 2, 1936, to extend the time within which the bill of exceptions may be tendered and certified, and the court desiring that' all matters may be presented to the Supreme Court including the effect of Section 2-703 Oregon Code and amendments on the discretion of the Court, and for good cause shown, and in the exercise of the discretion of the Court,

It is Ordered that the time within which defendant may serve and tender the bill of exceptions is extended to include February 1,1936, and the transcript of testimony and other matters material to the appeal filed in this cause December 23, 1935, hereby is certified as

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a correct transcript of the testimony and as the bill of exceptions in this cause.”

( 65 P. (2d) 674 )

George S. Shepherd,

of Portland, for appellant.

Leo J. Hanley,

of Portland (Cookingham & Hanley and Glen McCarty, all of Portland, on the brief), for respondent.

On June 5,1936, respondent filed a motion in this court to strike the bill of exceptions from the records herein on the ground that said motion was not filed within the time limited by Oregon Code 1930, § 2-703, as amended by chapter 49, Oregon Laws 1931.

This court has had occasion to interpret said section, the most recent interpretation of which is found in

Hart v. State Industrial Accident Commission,

148 Or. 892 ( 38 P. (2d) 698 ). It was therein held that it was mandatory that the application and order for extension of time be made before the applicant is in default.. Based on that authority, the motion to strike will be allowed.

It is so ordered.

Argued on the merits February 17;

affirmed March 9;

rehearing denied April 13, 1937