Opinion
Motion to dismiss appeal and affirm judgment May 12, 1960 Judgment affirmed June 15, 1960
Appeal from Circuit Court, Marion County.
VAL D. SLOPER, Judge.
Robin D. Day and Charles D. Burt, Salem, for the motion.
No appearance contra.
Before McALLISTER, Chief Justice, and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, Justices.
JUDGMENT AFFIRMED.
The plaintiff has moved this court for an order dismissing this appeal and affirming the judgment of the court below on the ground the bill of exceptions has been stricken from the file and the sufficiency of the pleadings to support the judgment has not been challenged.
This is an action to recover damages for personal injuries sustained by plaintiff while riding as a passenger in a taxicab operated by the defendant, Salem Yellow Cab Co. The case was tried to a jury which found for the plaintiff in the sum of $12,582. From the judgment entered on the verdict, defendants have appealed.
The bill of exceptions filed in this court by defendants was stricken from the record because it had not been filed within the time allowed by law. Sherman v. Bankus, 218 Or. 271, 344 P.2d 771.
Defendant's brief contains a single assignment of error challenging one of the instructions given by the court concerning the duty of a motorist when making a left turn from a highway onto private premises.
The lack of a bill of exceptions has never been deemed ground for dismissal of an appeal. Twin Falls Bank and Trust Co. v. City Electric Co., 218 Or. 542, 346 P.2d 84 and Williams v. Ragan, 174 Or. 328, 143 P.2d 209, and cases cited therein. Lacking a bill of exceptions, this court may still consider the sufficiency of the pleadings, the findings of the trial court and whether the pleadings, or pleadings and findings, support the judgment. When the case has been tried to a jury we consider only the sufficiency of the pleadings, but in a law action tried by the court without a jury, we will consider both the sufficiency of the pleadings and whether the pleadings and findings support the judgment. St. Clair v. Jelinek et ux., 187 Or. 151, 210 P.2d 563; La Grande Air Service v. Tyler et al., 193 Or. 329, 237 P.2d 503; Sheridan v. Pac. Tel. and Tel. Co., 200 Or. 636, 267 P.2d 1104; and Flaherty v. Bookhultz et al., 207 Or. 463, 291 P.2d 221, 297 P.2d 856.
The motion to affirm the judgment has not been resisted by defendants and we therefore assume that they do not challenge the sufficiency of the pleadings to support the judgment. We have examined the pleadings and find no basis for such a challenge.
The motion to dismiss the appeal is denied but the judgment is affirmed.