Kraft v. Montgomery Ward & Co., Inc. , 220 Or. 230 ( 1959 )

PER CURIAM.

This is an action for damages in which defendant Montgomery Ward & Co. appeals from a judgment against it and in favor of plaintiff, and plaintiff cross-appeals from a judgment exonerating the individual defendant, Richard F. Hutchinson. .

Appellant, Montgomery Ward & Co., has filed its short transcript on appeal and a bill of exceptions incorporating three volumes which are certified by the trial judge to contain all of the proceedings had at the trial and also incorporating certain documents which are certified to be all of the exhibits admitted in evidence. The envelope of exhibits submitted with the bill of exceptions contains those which were rejected as well as those which were received, although only the latter are referred to and incorporated in the bill of exceptions.

The plaintiff (respondent and cross-appellant) has not yet filed his short transcript, but he has obtained extensions of time from the trial court for the purpose of filing his short transcript and a bill of exceptions. He now moves this court for permission to adopt by reference and incorporate in his bill of exceptions the transcript of proceedings and exhibits which have been submitted with Montgomery Ward’s bill of exceptions, including the exhibits rejected as well as those received.

For reasons to be hereafter stated, we deny the motion. The matter would not warrant publication of an opinion except for an apparently prevailing misconception with respect to the function of a bill of exceptions.

In McCarty v. Hedges, 309 P2d 186, 64 Adv Sh 531, we said:

“* * * our practice does not contemplate more than one bill of exceptions in a given case, at least where the one bill of exceptions includes all the testimony and proceedings had at the trial.”

What we there said with respect to a separate appeal by a co-defendant applies equally to a cross-appellant. Where one appellant has filed a bill of exceptions containing all of the proceedings at the trial, a cross-appellant may rely upon it in this court and need not file a duplicate. Ordinarily the party first giving notice of appeal is treated as the primary appellant, and he assumes the burden of initiating the bill of exceptions.

The Oregon Constitution (Amended Article VII, §3) provides that “either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal.” The reference to “the bill of exceptions” indicates an intent that there be but one bill of exceptions in a case.

If the bill of exceptions tendered by the primary appellant contains less than the entire proceedings, and if the cross-appellant (or co-appellant) seeks to raise points on appeal which require consideration of matters not included in the original bill, he may seek to have the additional material added to it by: (1) objecting to the bill of exceptions being settled without the addition of the other matters; (2) moving for amendment after the bill has been settled; or (3) submitting a supplemental bill of exceptions, which in theory would be a part of the original one. The possible “separate” bill of exceptions mentioned in McCarty v. Hedges, supra, would be such a supplemental bill.

In any event, the contents of a bill of exceptions and the proceedings for its settlement are peculliarly within the province of the trial judge. Since it is a memorial of what occurred in his court, and he must certify it, this court cannot tell him what it shall contain. Rubik v. Davis, 76 Or 501, 147 P 552. When we consider the appeal on its merits, we may have to determine whether the bill of exceptions is sufficient to present the points on which the appellant (or cross-appellant) relies.' But that question cannot be determined on a preliminary motion. Ohlson v. Steinhauser, 218 Or 532, 315 P2d 136, decided September 11, 1957.

To the extent that the cross-appellant here seeks to incorporate by reference the exhibits which were offered and rejected at the trial (and which are not incorporated in the bill of exceptions submitted by Montgomery Ward, although they have been filed here with the others) his application should be to the trial court. If that court wishes to re-examine the exhibits before certifying thém, they may be returned to the clerk of the trial court upon appropriate application.

Motion denied.