Barde v. Wilson

• Decision Date: 08 June 1909
• Citation: 54 Or. 68,102 P. 301
• Parties: BARDE et al. v. WILSON.
• Court: Oregon Supreme Court

102 P. 301

54 Or. 68

BARDE et al. v. WILSON.

Supreme Court of Oregon

June 8, 1909

Appeal from Circuit Court, Multnomah County; E.C. Bronaugh, Judge.

Action by M. Barde and others against J.T. Wilson. Judgment for defendant. Plaintiffs appeal. Dismissed.

R.R Giltner, for appellants.

Alex. Bernstein, for respondent.

PER CURIAM.

The defendant's attorney calls attention to the transcript in this action, sent up by the clerk of the trial court, and moves to dismiss the appeal on the ground that the notice was not given at the proper time. The plaintiffs' attorney relies upon a stipulation of the parties, wherein it is specified that the appeal shall be tried on a printed record and maintains that, according to the terms of the agreement an abstract was served on the adverse party and filed in this court; that the synopsis filed shows that a notice of appeal was given in open court when the judgment was rendered; that upon service of the abstract, if the defendant's attorney had considered it imperfect or unfair, and desired to file an amended abstract, he had 10 days in which to do so (Rule 5 of the Supreme Court, 50 Or 572, 91 P. viii); that he did not take advantage of this right, and, by reason thereof, is estopped to dispute the correctness of the statements contained in the abstract filed--and especially so, when no motion to dismiss the appeal was made until after the time for serving another notice had expired.

It is manifest from the abstract that a verdict for the defendant was given November 9, 1908, and that a motion to set aside the verdict and for a new trial was filed the next day and overruled December 19, 1908. The entry made in the journal at that time, omitting the immaterial parts, is as follows "Now, at this time, this cause coming on to be heard (on), the notice filed herein by plaintiffs to set aside the verdict of the jury heretofore returned in the above-entitled action and the judgment entered thereon, and to grant plaintiffs a new trial, *** and the court having heard the arguments of counsel for and against the motion, and being fully advised in the premises, it is ordered that said motion be and the same is hereby denied. Thereupon counsel for plaintiffs in open court gave notice of appeal from the judgment entered herein in favor of the defendant and against the plaintiffs, and from the whole thereof, to the Supreme Court of the state of Oregon. [ Signed] Earl C. Bronaugh Judge." Immediately after the entry noted, the following statements appear in the abstract, to wit: "And afterwards, on the 19th day of December, 1908, it being the 12th day of said term, the following judgment was rendered (omitting title): 'Now, at this time, this cause coming on to be heard, on motion of counsel for defendant for judgment on the verdict, and it appearing to the court that the jury duly impaneled in the above-entitled cause, has on this day returned into open court their verdict in favor of the defendant and against the plaintiffs, in the sum of...