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Kam v. Gaughan

Oregon Supreme Court
May 3, 1977
563 P.2d 673 (Or. 1977)

Opinion

No. 74-0197, SC 24512, No. 74-0198, SC 24513

Submitted March 29, 1977

Affirmed May 3, 1977

In Banc

Appeal from Circuit Court, Lane County.

William W. Wells, Judge.

Affirmed.

D. Richard Hammersley and Pozzi, Wilson Atchison, Portland, for appellants.

Bryson Robert, Eugene, and Calkins Calkins, Eugene, for respondent.

Before Denecke, Chief Justice, and Holman, Tongue, Howell, Bryson, Lent and Davis, Justices.


TONGUE, J.

Davis, J., Pro Tempore, specially concurring.


These are two consolidated actions for damages for alleged medical malpractice. The cases were tried before a jury, which returned a verdict in favor of defendant. Plaintiffs filed a motion for a new trial, which was denied.

Plaintiffs then attempted to appeal by filing a notice of appeal stating that "the Court erred in denying plaintiff's motion for new trial," contrary to the well established rule that an appeal will not lie from the denial of such a motion.

See Erwin v. Thomas, 267 Or. 311, 312-14, 516 P.2d 1279 (1973), and cases cited therein.

Plaintiffs next attempted by their brief as appellants in this court to assign as error an instruction given by the trial court without setting forth the instruction verbatim, together with the exception taken to that instruction, as required by Rule 6.18 and Appendix D of the Rules of Procedure of this court. For that reason, plaintiffs' sole and only assignment of error is not entitled to consideration.

Rule 6.18 of the Rules of Procedure of this court provides:

"* * * The assignment of error must be specific and must set out verbatim the pertinent portions of the record. Assignments of error which the court can consider only by searching the record for the proceedings complained of will not be considered."

See Roshak v. Leathers, 277 Or. 207, 216-18, 560 P.2d 275 (1977), and Elvalsons v. Industrial Covers, Inc., 269 Or. 441, 443-44, 525 P.2d 105 (1974).

Finally, the record shows that no exception was taken on trial to that instruction — a fact which would have been apparent had plaintiffs' assignment of error complied with the requirements of Rule 6.18. It is equally well established that this court will not ordinarily consider an error in instructions to the jury in the absence of a proper exception in the trial court.

See Jones v. Mitchell Bros., 266 Or. 513, 523, 511 P.2d 347, 514 P.2d 350 (1973), and cases cited therein.

If this were an appeal by a defendant from a money judgment in favor of plaintiff, we would assess a penalty of 10 per cent for the filing of an appeal without "probable cause for taking the appeal," under the terms of ORS 19.160. Because this is an appeal by plaintiffs from a judgment in favor of a defendant, no such remedy is available.

See Stirling v. Dari-Delite, Inc., 262 Or. 359, 365-66, 491 P.2d 1168, 494 P.2d 252, 498 P.2d 753 (1972).

The bar of this state must recognize, however, that with the ever-increasing volume of appeals to this court, time is simply not available for members of this court to give consideration to appeals which so clearly have no merit.

Cf. Roshak v. Leathers, supra note 3, at 218.

The judgment of the trial court is affirmed.


The basis of this appeal is without any merit whatsoever, and I would not dignify it with an opinion. The time spent on appeals such as this detracts from the time needed to consider meritorious cases presented to this court.


Summaries of

Kam v. Gaughan

Oregon Supreme Court
May 3, 1977
563 P.2d 673 (Or. 1977)
Case details for

Kam v. Gaughan

Case Details

Full title:KAM, Appellant, v. GAUGHAN, Respondent. KAM, Appellant, v. GAUGHAN…

Court:Oregon Supreme Court

Date published: May 3, 1977

Citations

563 P.2d 673 (Or. 1977)
563 P.2d 673

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