Lewis v. Clark

Mr. Justice Ramsey

delivered the opinion of the court.

This action was tried by the court without a jury, and the court made and filed its findings of fact and conclusions of law. Assignments of error from 1 to 4, both inclusive, assert that the court erred in its findings of fact, and assignments 5 to 7 contend that the court erred in its conclusions of law. There is no bill of *463 exceptions in the record. What purports to he a deposition of the defendant Dr. J. E. Stauffer is among the papers on file. But evidently there must have been much other evidence, as there is nothing in this deposition to prove that the plaintiff sold any goods to anyone.

1. In actions at law, the findings of the trial court stand as the verdict of a jury, and can be set aside in the same manner and for the same reasons that the verdict of a jury may be set aside, and a new trial granted: Section 159, L. O. L.; Flegal v. Koss, 47 Or. 370 ( 83 Pac. 847 ); Kyle v. Rippy, 19 Or. 186 ( 25 Pac. 141 ); Drainage District No. 4 v. Crow, 20 Or. 536 ( 26 Pac. 845); Hughes v. Holman, 23 Or. 485 ( 32 Pac. 298 ).

2. There being no bill of exception containing the evidence given on the trial, this court can consider only whether the findings are sufficient to support the judgment: Miller v. Head Camp, 45 Or. 192 ( 77 Pac. 83 ); Drainage District No. 4 v. Crow, 20 Or. 536 ( 26 Pac. 845 ); Allen v. Leavens, 26 Or. 167 ( 37 Pac. 488 , 46 Am. St. Rep. 613 , 26 L. R. A. 620). In Drainage District No. 4 v. Crow, supra, Justice Strahan says: ‘ ‘ There is no bill of exceptions in this case, and therefore the main questions argued upon the trial we are not permitted to examine because the same are not presented by the record. The only question that is presented by the judgment-roll is the sufficiency of the findings of fact to support the judgment.” In Miller v. Head Camp, supra, Chief Justice Moore says: “There being no bill of exceptions, the only question involved is whether the findings of fact support the judgment.”

3. A statement of the testimony and of the rulings of the court on a trial, which the attorneys in the case stipulate to be correct, cannot be considered on appeal: Singer Mfg. Co. v. Graham, 8 Or. 17 ( 34 Am. Rep. *464 572 ); Umatilla Irr. Co. v. Barnhart, 22 Or. 390 ( 30 Pac. 37 ); Kimery v. Taylor, 29 Or. 234 ( 45 Pac. 771 ).

4. In a law case, the evidence given in the court below cannot be considered in this court, unless it is incorporated into a bill of exceptions and the bill is signed by the trial judge.

5. The court below found that the plaintiff sold and delivered to the defendant Clark goods of the value of $879.69, and that the defendant Clark promised and agreed to pay for said goods said sum, and that no part of said sum had been paid. The court found, also, that the defendant Dr. Stauffer did not purchase any part of said goods, and that he never promised to pay for them, and that the relation between George C. Clark and Dr. J. E. Stauffer was not that of a partnership, but that of debtor and creditor. As conclusions of law, the court found that the plaintiff was entitled to a judgment against the defendant George C. Clark for $879.69, with interest thereon at 6 per cent per annum from February 25, 1911, and costs and disbursements. The court found, also, as a conclusion of law, that the defendant Dr. J. E. Stauffer was entitled to a judgment against the plaintiff dismissing the complaint and for his costs and disbursements incurred in said action. The findings of the court fully support the judgment appealed from. There being no bill of exceptions in the record, we are unable to consider any other question.

The record discloses no error, and the judgment of the court below is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Burnett concur.