On Motion for Rehearing.
Per Curiam.Generally speaking, an appeal should not be dismissed or judgment affirmed in advance of a hearing in its order on account of a defective bill of exceptionSj or even a want thereof: 2 Ency. Pl. & Pr. 346; 3 Ency. Pl. & Pr. 511; Corder v. Speake, 37 Or. 105 (51 Pac. 647). The jurisdiction of the court, the sufficiency of the complaint, and perhaps other questions, can be raised on appeal without such a bill. Moreover, a bill of exceptions, which, through inadvertence or mistake, has been incorrectly made up, may, by order of the trial court entered nuñc pro tunc on proper notice be so amended as to make it conform to the facts, even though an appeal is pending: State ex rel. v. Estes, 34 Or. 196 (51 Pac. 77, 52 Pac. *309571, 55 Pac. 25). When, therefore, an appeal has been taken in the manner-and perfected within the time allowed by law, and the rules of this conrt in the matter of filing abstracts and briefs have been complied with, it ought not to be dismissed or affirmed on motion because of some defect in the bill of exceptions.
Upon the other points the petition is without merit. The acts authorizing the appointment of official reporters have not, in our opinion, changed or modified the law in reference to bills of exception and the settlement thereof. The only way to make oral matter or oral evidence in a law action a part of the record is by incorporating it into a bill of exceptions, or by annexing it thereto as an exhibit, and thus making it a part thereof. The portion of the order affirming the judgment, being technically erroneous, will therefore be vacated, and a rehearing denied. Affirmed; Rehearing Denied.