then and there the wife of the said Price Gates, all contrary to the statutes in such cases made Section 1560, L. O. L., being a part of the and provided and against the peace and dignity Code of Criminal Procedure, reads thus: of the state of Oregon."

trial, and both such motions may be made to-sential and cites many authorities in support gether, and heard and decided at once or separately, as the court may direct."

(98 Or. 490)

(193 P.)

NEALAN v. RING. * (Supreme Court of Oregon. Nov. 9, 1920.)

J. R. Wyatt, of Albany (Weatherford & Wyatt, of Albany, on the brief), for respondent.

I. Appeal and error 614-Transcript of evidence held not sufficiently authenticated. Where transcript of testimony was certified by a reporter, with nothing to indicate that such reporter was the official reporter, and was not filed with the clerk of the court or au-judicial district has authority in his discrethenticated by the certificate of the trial judge, the transcript was not sufficiently authenticated for consideration by Supreme Court under L. 0. L. §§ 554, 927, 929, 931, 932.

2. Appeal and error 614-Trial Judge may authenticate report of testimony, regardless of whether there is an official reporter.

It is competent for the trial judge to authenticate a report of testimony whether there is an official reporter or not.

3. Appeal and error 671(3)-Only question in absence of transcript is sufficiency of pleadings to sustain decree.

In absence of properly authenticated evidence, the only question to be considered on appeal is when the pleadings are sufficient to uphold the decree.

Department 1.

Appeal from Circuit Court, Linn County; George G. Bingham, Judge.

Action by Theodore Nealan against Al Ring. Judgment of dismissal, and plaintiff appeals. Affirmed.

See, also, 184 Pac. 275.

Substantially, this is a suit in which the plaintiff, claiming to be the owner of certain lands in Linn county upon which there is standing a large quantity of merchantable timber, sues to enjoin the defendant from a continuance of a trespass, and from cutting any of the timber. The answer denies the plaintiff's ownership of the land, and in fact traverses the whole complaint, except that there is standing timber upon the premises, and that the defendant went upon the The anland and began to cut the timber. swer further alleges a contract with the plaintiff through his agent, P. J. Nealan, whereby the defendant was to go upon the land, cut the timber thereon, and pay for it at the rate of $1 per thousand feet, board measure. This, in turn, is denied by the reply. A further defense, to the effect that P. J. Nealan is the real owner of the land, the title of which is held in the name of his father, the plaintiff, and that a contract was made with the son for the cutting of the timber is also alleged in the answer and denied by the reply.

After a trial before it, the circuit court denied the prayer of the complaint and dismissed the suit, and the plaintiff appeals.

W. C. Winslow, of Salem (V. A. Goode, of Stayton, on the brief), for appellant.

BURNETT, J. (after stating the facts as above. [1] We are prevented from an examination of the case on the merits by the absence of an official report of the testimony. By section 927, Or. L., the judge of each tion to appoint a stenographer, to be known as the official reporter, who before entering upon the discharge of his official duties shall take an oath faithfully to perform the duties of the office. Having taken stenographic notes of the evidence at the trial of the case, the official reporter must file the same in the office of the clerk, and, when either party to the suit requires a transcript of the testimony, the reporter is required to make such transcript, under certain conditions, certify the same, and file it with the clerk of the court. The transcript, thus authenticated, is deemed a prima facie correct statement of the testimony. In the absence or inability of the official reporter to act, the judge may appoint a competent stenographer to act as such, pro tem., who shall possess the same qualifications and take the same oath as the official reporter. Sections 929, 931, 932 and 933, Or. L. It is provided by section 554, Or. L., subdivision 1, that:

"If the appeal is from a decree and the cause is to be tried anew on the testimony, the clerk shall attach together the testimony, depositions, and other papers on file in his office containing the evidence heard or offered on trial in the court below, and deliver the same to the appellant, taking therefor his receipt in duplicate, one of which receipts he shall file in his office, and the other deliver to the reSuch evidence spondent when so requested. shall be deemed a part of the transcript or abstract, and shall be filed therewith."

In the instant case there are before us,
annexed together, what the clerk of the cir-
cuit court declares by his certificate to be
copies of the notice of appeal, undertaking
on appeal, order extending time for filing
transcript, and what he certifies and makes
part of the transcript, Defendant's Exhibits
A, B, C, D, and E, but there is no other
Accompanying
testimony thereto annexed.
the papers is what perhaps may be a tran-
scription of testimony in the cause, certified
thus:

"In the Circuit Court of the State of Oregon
for the County of Linn, Department No. 2.
"Theodore Nealan, Plaintiff, v. Al Ring,
Defendant.

"Reporter's Certificate.

"State of Oregon, County of Marion-ss.:
"I, Edna Garfield, do hereby certify that at
Albany, Oregon, on the 24th day of December,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
For opinion on petition for rehearing, see 193 Pac. 747.

1918, I reported in shorthand the proceedings | suits in equity. Tallmadge v. Hooper, 37 had in the above-entitled cause; that subse- Or. 503, 61 Pac. 349, 1127; Sanborn v. Fitzquently the same was reduced to typewriting, patrick, 51 Or. 457, 91 Pac. 540. These precand that the foregoing pages, numbered from edents and the instant case must be dis1 to 59, inclusive, constitutes all of the oral tinguished from Thomsen v. Giebisch, 95 Or. testimony adduced at said trial, and is an accurate transcript of said shorthand notes so 118, 173 Pac. 888, 186 Pac. 10, and Utahtaken by me, and of the whole thereof; that Idaho Sugar Co. v. Lewis, 95 Or. 224, 187 the exhibits therein referred to, consisting of Pac. 590, where we decided that the trial Defendant's Exhibits A, B, C, D, and E, re-judge or his successor alone could make and spectively, constitutes all of the documentary evidence offered and received at said trial; that each witness, before testifying, was first duly sworn to tell the truth, the whole truth and nothing but the truth.

"Dated at Salem, Oregon, July 1, 1919.

"[Signed] Edna Garfield, Reporter."

This transcript of testimony is not otherwise authenticated. It is not attached to the exhibits mentioned. It contains no file mark or other evidence indicating that it had ever been in the custody of the county clerk. The reporter does not pretend to be the official reporter of the circuit court. For aught that appears she may have been the private stenographer of one of the parties, acting with out any authority from the court. It is said in Neal v. Roach, 61 Or. 513, 515, 107 Pac. 475, 476:

"Such evidence might have been identified by the judge who tried this suit and rendered the decree herein, and he undoubtedly could, by a proper certificate, have made the judgment roll in the former suit, if it was received in evidence, a part of the transcript in this suit. Section 827, B. & C. Comp. [section 838, Or. L.]; Hume v. Rogue River Packing Co., 51 Or. 237, 83 Pac. 391, 92 Pac. 1065, 96 Pac. 865. * *It is sufficient to say that, unless it is identified and certified in the manner indicated, it will not be examined."

In that case the clerk had made an affidavit that a certain judgment roll had been introduced in evidence, but the court held that his affidavit was not competent evidence of that fact. The official reporter had died after taking stenographic notes of the testimony, but before the same had been transcribed, and no other shorthand writer could transcribe them.

sign a bill of exceptions in an action at law, although the same might consist largely of a transcript of the testimony. There is no such thing as a bill of exceptions in an equity case, and in this case we are concerned only with the manner of authenticating the testimony.

[2] The transcript of the stenographic of course, competent for the trial judge to notes must be filed with the clerk. It is, authenticate a report of the testimony, whether there is an official reporter or not. But authenticated either by the judge or the we cannot examine any such document not official reporter, and which does not come to us through the regular statutory channel. In

the instant case, the report of testimony is attested neither by an official stenographer nor by the certificate of the trial judge. This does not constitute the material upon which we can re-examine the question of fact involved in the case.

thenticated evidence, the only question to be [3] Owing to this absence of properly auconsidered is whether or not the pleadings are sufficient to uphold the decree. Howe v. Patterson, 5 Or. 353; Wyatt v. Wyatt, 31 Or. 531, 49 Pac. 855; In re Morrison's Estate, 48 Or. 612, 87 Pac. 1043; Scott v. Smith, 58 Or. 591, 115 Pac. 969; Matthews v. Matthews, 60 Or. 451, 119 Pac. 766; O'Connor v. Towey, 70 Or. 399, 140 Pac. 625; United States National Bank v. Shefler, 77 Or. 579, 143 Pac. 51, 152 Pac. 234. The sufficiency of the pleadings to justify the decree entered by the circuit court is not questioned. In brief, the state of the record precludes us from an examination of the questions urged at the argument, respecting the sale of timber considered as the disposal of an estate in land, and whether or not the statute of frauds is applicable to a transaction of the kind here in dispute. The decree of the circuit court must be affirmed.

The regular channel through which the evidence reaches this court is that prescribed by the statute. The report of the testimony must originate with the official stenographer, if one is used, and his certificate is suffi- MCBRIDE, C. J., and HARRIS and cient authentication of it for the purposes of | JOHNS, JJ., concur.

(38 Or. 113)

BUNNEL v. BUNNEL.

(193 P.)

(Supreme Court of Oregon. Nov. 16, 1920.) Divorce

130-Evidence insufficient to show cruel and inhuman treatment.

In a husband's action for divorce, evidence held insufficient to show that the wife was guilty of cruel and inhuman treatment; it not appearing that she was so neglectful of her household duties as to be cruel, or that her boasts as to her previous admirers, which were in line with her husband's boasts, amounted to cruelty.

In Banc.

to his wedding, and she, in turn, regarding the desirability as a husband of a young man named Burge, with whom she had kept company prior to her union with plaintiff. This sort of thing, however, did not continue very long, for the reason, as the wife says, that, discovering that it annoyed her husband, she ceased her part in the foolish conversation. These conversations do not ap

pear to have had any material effect upon their marital relations, as they continued to manifest their affection for each other, and to sustain the intimate relations of husband and wife, up to the 27th day of April, 1920, when plaintiff went to a hospital to be operated upon for hernia, at which time his

Appeal from Circuit Court, Wallowa Coun- wife went to town with him, staying with a ty; J. W. Knowles, Judge.

Suit for divorce by T. E. Bunnel against Josie Bunnel. From a decree dismissing the complaint, plaintiff appeals. Affirmed.

This is a suit for divorce. The complaint is founded upon allegations of cruel and inhuman treatment and personal indignities, rendering plaintiff's life burdensome. The answer denies the allegations of cruel treatment. There was a trial, resulting in a decree dismissing the complaint.

J. A. Burleigh, of Enterprise, for appel

lant.

Daniel Boyd, of Enterprise, for respondent.

BENSON, J. The substantial contention of plaintiff is succinctly stated in a question asked of him by his attorney, and in his answer thereto, which are as follows:

"Q. Now Tommy, the only trouble that you and your wife had was over her express statements of her love for Lem Burge, and her shiftless, careless way of taking care of the home, wasn't it? A. Yes, sir."

The record discloses that these young people were married on September 30, 1919, and that this suit was begun on May 4, 1920, or a little over seven months after the wedding. When they were married, the plaintiff was about 22 years of age, and the defendant be tween 18 and 19. Very soon after the marriage, in an exuberance of youthful folly and indiscretion, the young couple began to boast, he of his conquests with other girls, prior

married sister, who lived in the town and visited him daily at the hospital, where he remained about two weeks. There appears to have been no friction between them during this time, until shortly before plaintiff's departure from the hospital, at which time they had a small "spat" over the wife's treatment at the hospital, and as to where she should go after his leaving the hospital. This little quarrel does not impress one as being at all serious, but immediately thereafter the plaintiff sent for his attorney and began this suit.

We are of the opinion that the evidence as to the wife's talk regarding her former admirer, under the circumstances, falls short of

being cruel and inhuman treatment, nor do we find anything justifying a divorce in the small dispute which they had at the hospital. As to her neglect of her household duties, the most that can be said of the evidence upon this feature, taking as true the plaintiff's version of it, is that she is not an enthusiastic housekeeper, nor exceptionally efficient therein. It appears that, whenever she could, she got her husband to help her with the cooking and with the laundry work, which involved the use of a washing machine. It is also established that for a portion, at least, of the time when her husband found it necessary to do the cooking, she was being treated by the family physician for acute inflammation of the kidneys and was in no condition to do housework. Taken altogether, the evidence falls far short of that degree which would justify a divorce for cruel and inhuman treatment.

The decree of the lower court is therefore affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The complaint alleged that about June 3, 1918, Irwin, who was a real estate broker in 1. Deeds 32 Deed, with grantee's name the city of Portland, informed plaintiff that left blank, conveys no title.

5. Mortgages 154 (3)—Possession of land by a cloud on plaintiff's title to said premises. owner's tenants held not notice that land was not owned by mortgagor.