IN BANC.
This suit was instituted by plaintiffs to question the validity of certain items in an assessment for a sewer constructed by defendants. Plaintiffs appeal from the decree in favor of defendants. They filed in this court what is denominated as a short transcript, including in addition to the absolute jurisdictional documents the evidence and exhibits of plaintiffs. The evidence and exhibits introduced by defendants were not brought up by the first transcript. Defendants move to strike the transcript from the files. Defendants also move to strike from the files of this court the brief filed by plaintiffs alleging it to be slanderous.
Plaintiffs answer the affidavits filed by defendants in support of their motion to strike said documents and allege that the sole reason for not filing the complete
See 19 R.C.L. 920. *Page 446 transcript of the evidence is their inability to procure the same from the clerk of the court below. The court reporter did not extend his notes in time for plaintiffs to secure the evidence. Rather than be in default with all the evidence plaintiffs sent up just before being in default all of the evidence extended by the court reporter. Plaintiffs admit using the language alleged to be slanderous and undertake to justify their brief as within the liberty granted an attorney in making his argument.
MOTION TO STRIKE TRANSCRIPT DENIED. MOTION TO STRIKE BRIEF ALLOWED CONDITIONALLY. Plaintiffs confess the incompleteness of their transcript and tender with their opposition to the motion to strike a completed transcript. They also present sufficient justification for not having filed a complete transcript sooner. The case is one in equity and, therefore, the court could not try the case anew without all the evidence, and, of course, would have refused to do so on the record as it stood when the motion to strike was made. But the situation now is different and we do not think plaintiffs should be penalized for their inability to procure a complete transcript: Walker v. Fireman's Fund Ins. Co.,122 Or. 179 (257 P. 701).
The brief filed by plaintiffs is subject to severe criticism. In page 16 of plaintiffs' brief we find the following: *Page 447
"Plaintiffs' Recusation and Challenge against A.L. Leavitt, the trial judge, if sustained deprives the Decree of all Consideration in this Court. Three sets of affidavits and motions were brought in to circumvent the Trick or Sharp Practice of the defendants. An unverified answer and a willing judge who was then a candidate for reelection made the combination, and it was easy to secure a violation of the principle laid down by Judge BEAN inPackwood v. State, 24 Or. 262 (33 P. 674)."
In page 17:
"The court can see from the stipulation of the defendants (pages 3, 4 and 5 Evidence) that there was no issue on the facts — it was all a question of law and the construction of the Charter — yet the `prejudiced' court denies plaintiffs costs, and defendants force them to produce the proof of charter and ordinances of the city under a general denial."
In page 20 of the brief is the following language:
"* * when the Decree was written, the Court either carelessly or of premeditated prejudice, fixed the amount of the final levy at $24,914.64 — and we now challenge the defendant to harmonize the amount with the pleadings, vouchers or anything else."
Plaintiffs close their brief as follows:
"The Demonstrable Mistake in Figures, and including the many Vouchers for Extras — make the alleged Decree a Travesty."
Our statute prescribes the duties of attorneys to be, among other things, as follows:
"2. To maintain the respect due to the courts of justice and judicial officers; * *
"6. To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the *Page 448 justice of the cause with which he is charged." Or. L., § 1082.
The brief is a very flagrant abuse of the duties of attorneys who are public officers as defined in our Code cited above. From a reading of the brief it seems that the attorney for plaintiffs is aggrieved because his motion to disqualify Judge LEAVITT was denied by him. That motion was not presented, however, until after a motion and a demurrer had been presented and argued, and the case put at issue on the facts more than one day prior to the attempt to disqualify Judge LEAVITT. Plaintiffs were not entitled to disqualify the judge under the circumstances: Gen. Laws 1925, Chap. 143. But even if the motion had been well taken plaintiffs would not be justified in filing in this court a slanderous brief reflecting upon the integrity and motives of the judge who sat in the case. Abuse is no argument; culmination is not convincing; defamation is not determinative of an issue; perversion of speech is not persuasive. The language quoted from plaintiffs is very far from being respectful to the Circuit Court.
Defendants' counsel suggest that unless the brief is stricken they should have the privilege of responding in the same kind. "Two wrongs never make a right." Defendants should not follow the base example set by plaintiffs. We think the attorney for plaintiffs should file an apology in this court apologizing to Judge A.L. LEAVITT and this court for using the disrespectful language quoted above from their brief. If he does not do so within twenty days from the date of this opinion, the brief will be stricken from the files of this court. The motion to strike the transcript from the files is denied. The motion to strike the brief is allowed unless plaintiffs comply with this *Page 449 opinion by filing in this court a proper apology within twenty days.
MOTION TO STRIKE TRANSCRIPT DENIED. MOTION TO STRIKE BRIEF ALLOWED.
BROWN, J., did not participate in this opinion.