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WM. M. McC.ARTY, CHIEF JUSTICE.
HIRAM E. HADLEY, CITIER JUSTICE.
R. O. DUNBAR. MII, O A. ROOT.
CHARLES N. POTTER, CIIIEF JUSTICE. ASSOCIATE JUSTICEs. CYRUS IRE AIRD. RICHARD H. SCOTT.
SUPREME COURT OF OREGON. In Force October 1, 1907.
Rule 1. Transcripts on appeal in civil cases shall consist of a copy or printed abstract, as in these rules provided, of so much of the record as may be necessary to intelligibly present the questions to be determined, together with the copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and in criminal cases, the indictment and demurrer, if any, the journal entries of the plea, trial, verdict, and judgment, and any other order involving the merits and necessarily affecting the judgment; the bill of exceptions, if there be one, and the notice of appeal and certificate of probable cause, if any. If the appeal is from a decree, the transcript shall be accompanied by the original testimony, depositions, and other papers containing the evidence heard or offered On the trial, certified to by the clerk of the court below. (B. and C. Comp., §§ 208, 200, 553, 1448, 1479.)
Rule 2. Every transcript shall be on legalcap size paper, and typewritten or printed on one side only, shall be chronologically arranged, and prefaced with an index specifying the first page of each separate paper, order or proceeding, and in civil cases shall be made in Substantially the following form:
JUDGMENT * was rendered: (Here insert copy of judgment entry.) And afterwards, on the day of , 19—, the plaintiff (or defendant) filed
his BILL OF EXCEPTIONS, in Words and figures, as follows: (Here inSert in full the bill of exceptions.) And afterwards, on the day of
, 19—, the plaintiff (or defendant) filed his
NOTICE AND UNDERTAKING ON APPEAL,
in words and figures as follows: (Here inSert notice and undertaking on appeal in full.) Upon which was the following return or proof of service: (Copy return in full.) Then add the certificate of the clerk to the transcript as required by statute. Should the clerk doubt what the paper is, let him call it “Paper in words and figures following.” When a paper is filed in term time, add the day of the term to the day of the month.1 Rule 3. Transcripts and testimony must be paged by numbering the leaves consecutively to the end on the bottom of the leaf near the left-hand corner, and the name of the paper or Witness must be Written thereon. On the left-hand margin near the bottom. The testimony must be preceded by an index in which shall be noted the first page of the testimony of each witness. No transcript shall be filed by the clerk unless prepared in compliance with the foregoing rules, except by special order of the court or one of the justices thereof. No transcript or abstract in a civil case will be filed by the clerk until the appellant shall have paid to him the sum of $15.00, or no brief or other paper will be filed for respondent until he shall have paid to the clerk the sum of $10.00. (B. and C. Comp., § 887.)
1Note.—The foregoing form is intended only as a suggestion, and is to be varied according to the circumstances of each particular case. The actual facts of the case will dictate what is to be done; but in all cases, civil as well as criminal, the transcript is to be prepared substantially in conformity with the above form, giving the proper, order and date of filing papers, and incorporating them at the proper date as to the proceedings of the court, omitting from the transcript all unnecessary papers, such as undertakings on appeal, costs bills when not involved therein, as well as papers and orders which have ceased to perform any office in the case, such as demurrers and original pleadings when superseded by amended ones or waived by pleading over, unless such original pleadings are necessary to a proper understanding of the questions to be presented on appeal. The title of the court and cause, unless otherwise directed, may be omitted from all papers except the first paper in the cause, but the word “title” shall be used, the character of the paper, whether complaint, summons, answer, etc., shall be designated. The file marks and indorsements may aso be omitted, unless otherwise directed.
PRINTING AND SERVICE OF ABSTRACTS AND BRIEFS.
Rule 4. Within twenty days after the transcript is filed in a civil case, the appellant shall serve upon an attorney for each reSpondent a printed copy of so much of the record prepared, as hereinafter 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, together with sixteen copies of said abstract, and no case shall be docketed for hearing until this and other rules are complied with, except by order of the court. In case of cross-appeals, the party first giving liotice of appeal Shall, under this rule, be considered the appellant. In criminal cases a printed abstract may be served and filed, or Lot, as the appellant Shall elect. Rule 5. 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 of this court, with proof of Service upon appellant, sixteen 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 6. Within twenty days after the service of the abstract as required by rule 4, and within the same period after the transcript is filed in criminal cases, if no abstract is served, where the appeal presents only questions of law upon the rulings of the court below, the appellant shall serve upon the attorney for each of the respondents one copy of his brief, and deliver to the clerk of this court, with proof of service upon respondent, sixteen copies thereof, and within twenty days thereafter the respondent shall serve upon the attorney for the appellant one copy and deliver to the clerk sixteen copies of his brief, with like proof of service, and the appellant shall have ten days thereafter in which to serve upon respondent one copy and deliver to the clerk sixteen copies of a reply brief with proof of service, if he so desires. But Where the appeal is from a decree and to be tried anew upon the transcript and evidence accompanying it, the plaintiff shall open and close, and as to printed briefs shall observe the rules requiring the service and filing of such brief by appellant. A failure by appellant to comply with this rule within the time required, or such modification thereof as may be made, shall be deemed and considered as cause for affirmance or dismissal of the appeal, and a failure by the respondent as a Waiver of the right to be heard. Rule 7. All abstracts and briefs shall be printed upon unruled white paper, either from eleven-point (Small pica) or twelvepoint (pica) type, leaded with two-point or three-point leads. The size of the page must be six and one-quarter by nine and one-half inches, and the printed page shall be twentytwo by thirty-nine ems, pica, exclusive of folio at head of the page; the outer, top, and bottom blank margins of each page to be one and one-half inches wide. The cover, or if no cover is used, the first page, shall set forth the title of the case, designating the appellant and respondent, the term of this court to which the appeal is brought, the court from which the appeal is taken, the name of the judge who presided, and of counsel for the respective parties, and the party in whose bellalf the same is filed, Whether appellant or respondent. Rule 8. The printed brief shall state the several propositions of law claimed to be inVOlved in the case, and the authorities relied upon for the Support of the same separately from the argument. The points and authorities must be first distinctly stated and the argument set forth supplementary thereto. When an authority cited is an adjudicated case, the names of the parties, the volume in Which reported, and the particular page or pages containing the matter to which counsel desires to call the attention of the court must be set out. When the reference is to a textbook the number or date of the edition must be stated, with the number of the volume and page. In equity cases the brief shall alSo contain such portions of the evidence as may be deemed material, giving the name of the witness, and may be in either narrative form or by question and answer. Rule 9. The printed abstract of the record must be accompanied by a complete index of its contents, and shall be made substantially in the following form:
the officer. Append to the abstract of each paper a reference to the page of the tranScript on which it will be found.)
On the day of , 19—, the defendant filed a
to the said complaint, setting up the following grounds: (State only the grounds of demurrer, omitting the formal parts. If the pleading was a motion, and the ruling thereon is one of the questions to be considered, set it out in the same Way, and Continue.)
And on the day of , 19—, the same was submitted, and the court made the following ruling thereon: (Here set out the ruling. In every instance let the abstract be made in the chronological order of the events in the case—let each ruling appear in the proper connection. If the defendant pleaded over, and thereby waived his right to appeal from the ruling, no mention of it Should be made in the abstract; and if no question is to be raised on the appeal growing out of the rulings of the court upon motions or demurrers, no mention should be made of them in the abstract, but it should continue.)
And on the day of , 19—, the defendant filed his
as follows: (Here set out so much of the answer as may be necessary to explain the questions raised On the appeal, and 110 Inore, omitting all formal parts. If motions Or demurrers were interposed to this pleading, proceed as directed with reference to the complaint. Frame the record so that it Will properly present all questions to be reviewed find raised before issue Was joined, and none
other. When the abstract shows issue joined, proceed.) On the day of , 19–, said
cause Was tried by a jury (Or the Court, as the case may be) and on the trial the following proceedings were had: (Set out so much of the bill of exceptions, or the Substance thereof, as is necessary to show the ruling of the court to which exceptions were taken during the progreSS Of the trial and which will be urged as error on the appeal, and no more.)
After the evidence and the arguments of counsel were concluded, the plaintiff (or defendant, as the case may be,) asked the court to give the following
to the jury: (Set out the instructions referred to and continue;) each of which the court refused; to which said several rulings the plaintiff (or defendant) excepted at the time, and thereupon the court gave the following instructions to the jury: (Set out the instructionS.)
To the giving of those numbered (give number), and to the giving of each thereof,