
    Argued June 23,
    peremptory writ ordered July 11, 1916.
    PORTLAND GAS & COKE CO. v. CAMPBELL.
    (158 Pac. 527.)
    Appeal and Error—Appeal from Order Granting New Trial—Certification of Testimony.
    1. Upon appeal from an order granting new trial, the Supreme Court must have the record of the former hearing before it to determine whether or not there was any error therein which would justify the order vacating the judgment, and under Article VII, Section 3 of the Constitution, appellant has the right to have the whole testimony attached to the hill of exceptions.
    Original proceeding in Supreme Court.
    
      In Banc. Statement by Mr. Justice Benson.
    This is an original proceeding in mandamus by the Portland Gas & Coke Compan/ against James U. Campbell.
    - The cause was presented upon demurrer to an alternative writ of mandamus issued out of the court upon the following.facts. The plaintiff herein was defendant in an action for damages in the lower court wherein it obtained a verdict and judgment in its favor. Thereafter, upon motion of plaintiff in such action, the court entered an order setting aside the judgment and granting a new trial. From this order, plaintiff appealed and presented to the judge of the lower court a bill of exceptions to which was attached all the evidence and exhibits admitted upon the trial of the action, which the judge refused to certify, and refused further to certify any bill of exceptions which should include the evidence.
    Peremptory Writ Ordered.
    For plaintiff there was a brief over the names of Mr. F. C. Howell, Messrs. Wilbur & Spencer and Messrs. Stapleton & Conley, with an oral argument by Mr. F. C. Howell.
    
    For defendant there was a brief with oral arguments by Mr. Levy Stipp and Mr. Christian Schuebel.
    
   Mr. Justice Benson

delivered the opinion of the court.

The defendant insists that, since the order appealed from is a matter of record, no bill of exceptions is necessary, and that therefore the plaintiff is not entitled to have the testimony of the trial certified. However, upon appeal from an order granting a new trial, this court must have the record of the former hearing before it, to determine whether or not there was any error therein which would justify the order vacating the judgment. Article VII, Section 3, of our state Constitution, gives every litigant the unqualified right to have the whole testimony attached to a bill of exceptions upon appeal. The demurrer is overruled and a peremptory writ ordered.

Peremptory Writ Ordered.

Mr. Justice Eakin absent.  