"The Court: There is no objection to that.

"Mr. Montague: That is not what I objected to. "The Court: Go ahead.

"A. If I have been unfair in this thing I want to apologize to you gentlemen and to the court, and if I have been unfair in a righteous cause, and when I look over the slick, well-fed manager of the company, Mr. Middleton, I am wondering if he will ever be called on to come into the court and get what is his right and just dues. I am not religious, I am not a member of any church, but I did receive a few instructions as a boy, and as I grew older-it may be because my mother was religious-I have always tried to follow the golden rule, and I am going to repeat it, not for Mr. Montague's benefit, because I think he is familiar with it, 'Whatsoever you would that men should do unto you, do you also unto them.' That is Christ's golden rule; that is not the lawyer's golden rule, but that is Christ's golden rule, and he says he was sent on earth to preach the gospel to the poor. They were the ones that needed his protection, not Mr. Montague or Mr. Middleton, or that class of people; they don't need it; that is just exactly the situation.

To these remarks the defendant objected on the ground that they were an appeal to class prejudice, and this objection was sustained by the court. While the remarks covered by the first objection of counsel for defendant were vehement and, perhaps, unnecessarily severe, we cannot say as a matter of law that there was not some basis for them in the testimony. At all events they did not go beyond the very common measure of denunciation indulged in by attorneys in the heat of argument. The objection to the remarks embraced in the second exception on this subject was sustained by the court, and there the matter rested; counsel for defendant taking no exception to the ruling of the court and not asking the court to direct the jury to disregard the remarks to which they objected.

5. Further remarks of counsel for plaintiff along the same line appear in the transcript of testimony, but, not being made part of the bill of exceptions, will not be considered here.

While it must be conceded that the testimony introduced by defendant was strong and, in the judgment of the writer, tended greatly to discredit plaintiff's theory of the case, we feel ourselves precluded by the law from disturbing the finding of a jury upon testimony the value and effect of which it was their exclusive province to determine.

The judgment is affirmed.

AFFIRMED. REHEARING DENIED.

MR. CHIEF JUSTICE MOORE, MR. JUSTICE BURNETT and MR. JUSTICE BENSON Concur.

On motion to dismiss appeal, argued January 13, denied January 26,

1915.

On the merits argued October 5, reversed November 9, rehearing denied December 7, 1915.

STATE EX REL. v. RIDER.

(145 Pac. 1056; 152 Pac. 497.)

Contempt-Appeal-Bill of Exceptions.

1. Whether a sentence for contempt exceeds the limits fixed by statute, being determinable from an examination of the judgment as exemplified in the record, may be submitted on appeal without a bill of exceptions, even though other questions discussed in the brief could not be considered without the evidence and a bill of exceptions.

Contempt Appeal-Record-Additional Abstract.

2. Where respondent deems the abstract imperfect or unfair, he should file an additional abstract, as prescribed by Supreme Court Rule 7 (56 Or. 616 [117 Pac. x]).

Contempt Appeal-Assignments of Error-Sufficiency.

3. That assignments of error in the abstract on appeal fall short of technical accuracy does not require a dismissal of the appeal, not essential to a transfer of the cause,

Contempt Appeal-Transcript-Authentication.

4. Where defendant has attempted in good faith to comply with Laws of 1913, page 656, declaring that when an appeal is perfected the original pleadings and the original bill of exceptions shall be sent up by the clerk of the trial court and made a part of the transcript, he will be allowed to supply a certificate to meet the objection that the pleadings and papers sent up were not properly authenticated.

ON THE MERITS.

Appeal and Error-Record-Certification.

5. Documents not certified by the judge as having been received or offered in evidence at the trial cannot be considered on appeal, though certified by the clerk below and filed in the appellate court.

Appeal and Error-Record-Questions Presented.

6. In the absence of a bill of exceptions, the only question to be considered on appeal is whether the findings of fact support the judg

ment.

Justices of the Peace Supplementary Proceedings — Disobedience of Order-Punishment-Proceedings.

7. Where a judgment debtor is discharged, in proceedings for contempt before a justice of the peace in not paying over, as ordered, money found to be in his possession in supplementary proceedings, and the judgment creditor appeals to the Circuit Court, the burden is on the creditor to show that the money is still in the debtor's possession; there being no presumption thereof.

[As to courts and tribunals authorized to punish for contempt, see note in 117 Am. St. Rep. 950.]

From Marion: PERCY R. KELLY, Judge.

In Banc. Statement by MR. JUSTICE HARRIS.

This is a motion to dismiss an appeal from the judgment of the Circuit Court of Marion County finding the defendant guilty of contempt. The reasons assigned in the motion are that: (1) No bill of exceptions was allowed or filed; (2) the evidence has not been brought before this court; (3) the abstract filed herein is insufficient because the affidavit for contempt on which the judgment was based is not set forth in full, the findings of fact are only partially recited, and the conclusions of law are omitted; (4) there are no assignments of error which could be determined on appeal; and (5) the notice of appeal was not served on the district attorney or other officer of the State

of Oregon. The transcript filed includes copies of the judgment, notice of appeal showing acceptance of service by both the district attorney and the attorney for the relator, and the undertaking on appeal. There are, in the hands of the clerk of this court, what purport to be papers filed in the Justice Court, where the contempt proceeding originated, and also what appear to be papers filed in the Circuit Court. There is no bill of exceptions. The objections will be considered in the order already stated. MOTION DENIED.

Mr. Ernest R. Ringo, District Attorney, and Messrs. McNary, Smith & Shields, for the motion.

Mr. Ivan G. Martin and Mr. Carey F. Martin, contra.

MR. JUSTICE HARRIS delivered the opinion of the court.

1. One of the questions sought to be determined by this appeal is whether the sentence imposed by the court exceeds the limits fixed by statute. An examination of the judgment, as we find it exemplified in the record, will reveal a recital of sufficient facts to enable a decision of the point raised. At least one phase of the case can be submitted on appeal without the presence of a bill of exceptions, and even though other questions discussed in the brief could not be considered without the evidence and a bill of exceptions.

2. If plaintiff deemed the abstract imperfect or unfair, an additional abstract could have been filed as provided by Rule 7, 56 Or. 616 (117 Pac. x); Francis v. Bohart, 76 Or. 1 (143 Pac. 920).

3. The assignments of error as set forth in the abstract are sufficient; and, even if they fell short of

technical accuracy, the rule in Proctor v. Jeffery, 76 Or. 151 (144 Pac. 1192), would apply.

The objection that the district attorney was not served with the notice of appeal is answered by the fact that the record shows that he admitted service.

4. The defendant has attempted in good faith to comply with the provisions of Chapter 335 of the Laws of 1913, and has caused to be sent to the clerk of this court, not only all the pleadings, but also all the original papers filed in the case. Objection has been made. to these pleadings and papers because not properly authenticated, and defendant, therefore, has requested permission to supply a certificate that will meet the objection made. The request of defendant is granted.

"While vexatious appeals should be discouraged, yet the opportunity for litigants to have their issues tried in the higher courts should not be hindered by technical constructions, which too frequently lead to the subversion of justice: Smith v. Algona Lumber Co., 73 Or. 1 (136 Pac. 7).

The motion to dismiss the appeal is denied.

MOTION DENIED.

Reversed November 9, rehearing denied December 7, 1915.
ON THE MERITS.

(152 Pac. 497.)

Department 1. Statement by MR. CHIEF JUSTICE MOORE.

This proceeding was commenced in the Justice's Court of Salem district by the State of Oregon, on the relation of T. E. Mitchell, against U. S. Rider, to

78 Or.-21