On Petition for Rehearing.
(193 Pac. 747.)
On petition for rehearing. Denied.
Mr. Walter C. Winslow and Mr. V. A. Goode, for the petition.
Messrs. Weatherford & Wyatt, contra.
Department 1.
McBRIDE, J.This cause was argued and submitted on October 6, 1920, and an opinion written by-Mr. Justice Burnett affirming the decree of the Circuit Court was handed down on November 9, 1920. In that opinion we declined to consider the testimony in the case for the reason that such testimony had not been filed with the clerk of the Circuit Court or authenticated by the circuit judge as required by law. After this opinion had been rendered, the appellant procured the transcript of testimony to be certified by the circuit judge, and now moves for a rehearing on the merits. The affidavit of one of appellant’s attorneys is substantially to the effect that he seasonably had the testimony extended and showed it to the attorneys for respondent, who assented to its accuracy; that he has no knowledge or recollection as to how it found its way into the office of the clerk of the Circuit Court; and that the failure to have .it certified was due to the excusable oversight of appellant’s attorney, who supposed that this had been done, until he saw the opinion of Mr. Justice Burnett in this case. He now asks leave to have the case reheard upon the merits.
This application comes too late. Had it been made before the hearing, we would have been inclined to permit the transcript to be amended; but to allow a party after having tried his case upon the transcript he has presented, and after defeat, to procure an amendment of it and a rehearing upon the transcript as amended, would lead to intolerable delays in the administration of justice. This is especially the case in instances like the present, where the defect was pointed out in.the respondent’s brief. We quote from that brief the following:
*499“There is another feature in this case, that we are to presume that the transcript contains all of the evidence and exhibits. There was no official reporter appointed by the court to report or transcribe the evidence in the case and the same does not bear the file mark of the clerk of the court, nor is it identified in his certificate or by the certificate of the trial judge.”
This brief was filed November 8,1919, and the hearing was had on October 6, 1920, so that appellant had nearly a year prior to the hearing in which to procure the certificate of the trial judge, had he deemed it material.
Neither the affidavit nor the transcript of testimony shows any such controlling equities as should induce this court to disregard the salutary rule announced in State v. Jennings, 48 Or. 483, 494 (87 Pac. 524, 89 Pac. 421), which is substantially to the effect that amendments to the transcript will not be permitted after a cause has been argued and submitted and an opinion handed down: See, also, McCann v. Burns, 73 Or. 167, 172 (136 Pac. 659, 143 Pac. 916, 1099, 1100); Noble v. Watrous, 84 Or. 418, 426 (163 Pac. 310, 165 Pac. 349); Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 359 (173 Pac. 267, 175 Pac. 659, 176 Pac. 289).
The petition for rehearing is denied.
Affirmed. Rehearing Denied.
Burnett, C. J., and Harris and Johns, JJ., concur.