Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-28

failure to tender any sum of mone-
as a condition precedent to the exc
cution of deed to Stewart is set
forth, and other ALLEGED errors are
assigned, to all of which exceptions
were undertaken to be established.
The trial judge refused to adopt the
formal written statement so arranged.
whereupon an amended bill was pre-
pared and certified to which was at
tached the rejected manuscript,
designated as Exhibit A.
The statute regulating exceptions
contains a clause as follows: IF an
objection is made to any ruling of
the court in the progress of a trial,
and the truth of the statement there
of is not agreed upon between the
counsel and the court, the counsel
may verify his statement thereof by
his own oath and that of two respec-
table and disinterested persons, or by
his own oath and that of the stem
ographer who took the same down.
and file the same as an exception to
the ruling objected to-" L. o. L. Sec.
10. No attempt was made to secure
a bill of exceptions in the manner
thus prescribed and such being the
case, the formal written statement of
the objections and exceptions certi-
fled by the trial Judge is controlling.
In constituting another clause of
the amended statute referred to d.
o. L. Sec. 201) it was determined
that an oral notice of appeal, in or
der to effectuate a transfer of the
cause, should be given when the
judgment was rendered and not when
the motion for new trial was de-
MED. Barde V. Wilson, "a Or. 6S. A
careful re-eXamination of the several
sections of the amended statute COM
pels an adherence to the rule an
nounced in Oldland " Or. Goal &
Nav. Co., supra. The motion to dis
miss the appeal from the order deny
ing new trial and to strike from
the transcript Exhibit A, the consid-
Grafton of which was postponed until
the cause could be heard on its mer-
its, (Colgan v Farmers G Mechanics
Bank, 1O6 Pac. 1134 is now granted,
that appeal dismissed and the ex-
hibit stricken from the files.
1t is maintained that the complaint
does not state facts sufficient to con-
stitute a cause of action for that it
does not aver that defendant was the
owner of the property and capable of
conveying the title to Stewart. The
complaint alleges that on May 10,
1909, when informed that a purchaser
had been secured who was able, ready
and willing to pay $4,000 for the land,
the defendant then notified plaintiff
that it had traded and conveyed the
pIelulSSS W 1OuuB lOI OJueT
lands. This averment is denied in
the answer. Based on this issue, G.
w. Huffman, an officers of the defen-
dant, referring to notice served
upon it by plaintiffs attorney, testi-
fled as follows: "Mr. Holmes came
into the bank and presented this pa
per that he has just read in evidence
and l told him that we had traded the
property off and that we were willing
to turn the property over that we re-
ceived for it If he wanted to take
that and give us what we had against
it. All we wanted was our money.
He said he didn't want that; he want
ed the original land. / told him that
we were not in position at that
time to deed to him."
Frank Holmes, the attorney mem
toned, in referring to the notice
served on the defendant, corroborates
the sworn statements made by the
preceding witness, as follows: BE
fore served that upon Mr.. Huffman
at that time, Mr.. Huffman notified me
/ that they had traded the place away
to a man by the name of Young, and
that he could not deed to Mr.. Stew
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