
    Motion to dismiss appeal, allowed October 13, 1925.
    NELLIE E. MEGLER v. D. S. TARABOCHIA.
    (239 Pac. 829.)
    Appeal and Error—Affidavits on Appeal must be Brought by Bill of Exceptions.
    1. In an appeal from lower court from order' overruling motion to quash summons, affidavits in matter of service of summons must be brought by bill of exceptions.
    Appeal and Error—Bill of Exceptions may not be Ordered Where not Applied for Prior to Appeal.
    2. Where bill of exceptions had never been asked for or presented to Circuit Court, Supreme Court will not permit party, after appealing, to apply to Circuit Court for such bill, and, if allowed, to present it as part of transcript.
    (1) 4 C. J. 145, 147. (2) 4 O. J. 501 (Anno.).
    From Clatsop: J. A. Eakin, Judge.
    
      In Banc.
    Appeal Dismissed.
    For the motion, Messrs. G. G: and A, G. Fulton.
    
    
      Contra, Mr. James W. Mott.
    
   McBBIDE, C. J.

This is a motion to dismiss an appeal, which in substance is an appeal from an order of the court respecting- the quashing of service of summons. The matter was tried in the Circuit Court, so far as the record discloses, upon affidavits of the different parties in regard to service of summons, and the decision and judgment of the Circuit Court was against the appellant and defendant in this case.

An appeal was taken to this court, but no bill of exceptions has ever been filed. Certain affidavits accompany the transcript. A motion is made to dismiss the appeal for the want of a bill of exceptions, there appearing- no other question raised excepting- the exercise of the discretion of the lower court in overruling- its motion to quash the service of summons. It has been repeatedly held in this state that affidavits in matters of this kind must be brought by a bill of exceptions: Multnomah Lumber Co. v. Western Basket Co., 54 Or. 22 (99 Pac. 1046, 102 Pac. 1); Shaughnessy v. Kimball, 106 Or. 484 (212 Pac. 483), and many other cases.

The appellant now asks that the court make an order permitting him to present a bill of exceptions to the Circuit Court, and if allowed, to bring it here as part of the transcript of the case.

While we have gone very far in permitting amendments to bills of exception and in permitting cases, where a bill of exceptions has been presented to the court but not finally acted upon, to be amended or presented here, we have never gone so far as to make an order in cases, where a bill of exceptions has never been asked for or presented to the Circuit Court, permitting a party after appealing here to apply to the Circuit Court for such a bill, and if allowed, to present it here as part of the transcript.

The business of this court is very much congested as it is, and we must decline to permit parties to experiment with the Circuit Court in regard to bill of exceptions with the hope that the discretion of the court below will be exercised in their favor. There is no appealable question presented on the record here and the appeal will be dismissed.

Appeal Dismissed.  