Backhaus v. Buells

On Motion to Dismiss the Appeal.

Mr. Justice Wolverton

delivered the opinion.

This is a motion to dismiss the appeal herein, because certain exhibits, designated B, O, D, E, and F, which are attached to and made a part of defendants’ third and separate defense, are not contained either in the abstract or any transcript filed in this court. The purpose of the defense referred to was to set up a former adjudication, and these exhibits are copies of the complaint, answer, reply, motion for judgment, and judgment, in the first action. There was a motion interposed by defendants in the present cause for judgment on the pleadings, which was overruled by the trial court. In this ruling defendants insist that the court erred, and it is argued that because the exhibits referred to are omitted from the abstract they are unable to present the question here. It is manifest that if the motion for judgment was well taken the cause should have been finally concluded in defendants’ favor, unless, through a proper exercise of the discretion of the trial court, some amendment was allowed by which to remedy the defect, and that without the missing record the defendants’ assignment of error on the appeal cannot avail them on the trial of the cause here. The respondents are doubtless entitled to have this additional record here, and the question presented is who of the parties litigant should bring it up.

1. The respondents rely upon Section 554, B. & C. Comp., to sustain their position, which reads: “When it appears by affidavit to the satisfaction of the court that the transcript is incomplete in any particular substantially affecting the merits of the judgment or decree appealed from, on motion of the respondent the court shall make a rule upon the clerk of the court below, requiring him to certify as to such alleged omission, and if true, to transmit to the appellate court a certified copy of the pleading, entry, order, or other paper omitted in the transcript: or, in such case, the respondent may move to dismiss the appeal, and the court shall allow such motion unless, on the cross motion of the appellant, it makes a rule upon the clerk concerning such omission, as provided in this section, upon such terms as may be just.” The appellant insists that he has complied with the statute in bringing up so much of the record as will present the errors upon which he relies for a reversal of the judgment, and refers to Section 553, B. & C. Comp., to sustain his position. This section reads : “Upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligently present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and the undertaking on appeal.”

It would seem that appellant has brought himself clearly within the purview of this latter section, as he has filed here an abstract of the record, sufficient to present the errors relied upon by him for reversal of the judgment, together with a copy of the judgment appealed from, the notice of appeal, and the undertaking, with proof of service of such notice and undertaking. The rules of the court concerning the abstract require that the appellant shall serve upon an attorney for each respondent a printed copy of so much of the record prepared as therein provided as may be necessary to a full understanding of the questions presented for decision, and file with the clerk of this court proof of such service, etc. (Rule 4, 35 Or. 587, 591, 37 Pac. vi); and the form thereof is prescribed (Rule 9, 35 Or. 587, 595, 37 Pac. vii). It is also provided that, if the respondent shall deem the appellant’s abstract imperfect or unfair, he may, within ten days after receiving a copy thereof, deliver to the appellant’s counsel one, and to the clerk twelve, printed copies of such further or additional abstract, as he shall deem necessary to a full understanding of the questions involved in the appeal: Rule 5, 35 Or. 587, 593 (37 Pac. vi). Section 554 was enacted with a view of affording the respondent a remedy where the appellant failed to bring up such a transcript as was then provided by the preceding section, which has since been amended, and is now section 553. The transcript, as defined by subdivision 1, was to be a copy of the judgment roll or final record, etc. In its present or amended form it merely provides that the appellant may file a transcript or such an abstract as the rules of the appellate court may require of so much of the record as may be necessary to present intelligently the questions to be decided. So that the term “transcript,” as it relates to the appeal, has been given a modified or different signification from that which originally obtained. Instead of being a copy of the judgment roll or final record it is now a certified copy of so much of the record as may be necessary to present intelligently the questions to be decided, which, as well as the abstract, must be accompanied with a copy of the judgment or decree appealed from, notice of appeal, etc. So that section 554 must now be interpreted with a view to its application to the new act relating to the transcript. The transcript and abstract are now, in substance, the same. The former, however, comes under a certificate of the clerk of the court, while the latter is prepared from the record by the party appealing. If a transcript has been adopted for effectuating the appeal, and it appears that it is incomplete in any particular affecting the merits of the judgment or decree appealed from, the respondent may have the motion to dismiss, as employed in the present case. But, if the appellant has brought here such a transcript as is required by the preceding section, nothing more can be exacted of him, and the respondent should supply the missing record, if it is desired to present other questions upon his part in defense of the appeal.

Of course, if the transcript brought up by the appellant for the presentation of the questions relied upon by him for a reversal is incomplete and misleading, so as to present a false issue, then it must be admitted that the additional record ought to be at his expense. But it is otherwise where he has complied with the law, and where the respondent desires to present additional questions, and finds the record as exhibited by the transcript not full enough for that purpose. He must now bring that additional record here. The appellant cannot be expected to anticipate questions upon which the respondent may desire to insist, hence he could not be called upon to bring a record sufficient in all respects for that purpose. The rules of the court concerning the abstract were revised since the amendment of section 553, and proceed upon this principle, and may be fitly adopted as a proper interpretation of section 554, as it relates to the transcript. The appellant is therefore required to bring the record here by transcript or through the instrumentality of an abstract. In doing this, it is only necessary for him to incorporate therein such portions as will set forth intelligently the questions upon which he relies for a reversal. He must not present a garbled record or one that would show a different state of facts from that really existing, but must bring such-parts of the real record as maybe necessary to a full understanding of the questions presented for decision. When this has been done, the respondent must do the rest if he desires to present other issues deemed important for his defense to the appeal.

The motion to dismiss will therefore be denied, and the respondent may have a rule upon the clerk of the trial court requiring him to complete the record in the particulars suggested. Motion Overruled.