Byers v. Cook

• Decision Date: 24 March 1886
• Citation: 10 P. 417,13 Or. 297
• Parties: BYERS v. COOK.
• Court: Oregon Supreme Court

10 P. 417

13 Or. 297

BYERS v. COOK.

Supreme Court of Oregon

March 24, 1886

J.H. Woodward, for appellant.

E. Mendenhall, for respondent.

BY THE COURT.

This appeal is from a judgment entered upon an order dismissing an appeal from justice's court to said circuit court. A judgment was rendered against the appellant in the justice's court on the third day of August, 1885. On the seventh day of that month and year the appellant prepared and signed, with surety, an undertaking on appeal therefrom to the said circuit court. An affidavit of the surety showing that he was qualified as such was attached to the said undertaking, and on the twenty-fifth day of August, 1885, a notice of appeal having been duly prepared, was served upon the respondent; and on the twenty-eighth day of August, same year, said notice of appeal, with proof of service, was filed with the said justice, and thereupon said undertaking was also filed with him. The transcript of the justice's court proceedings in the case having been duly filed in the said circuit court, the respondent filed a motion to dismiss the appeal upon some six grounds enumerated therein, and on which motion the order was made, upon which said judgment was entered.

The first, second, third, and fifth grounds of the motion are so general that they cannot be considered.

The fourth one is to the effect that the notice of appeal was not served upon the respondent's attorney; and the sixth one that the undertaking was signed, and the affidavit of the surety taken, prematurely. Neither of these grounds, in the opinion of the court, is tenable. The undertaking was not intended to nor had any effect until filed. State v Young, 23 Minn. 551. It was prepared and signed with a view, no doubt, to be used in perfecting the appeal; and so long as it was prepared after the judgment was rendered, and not filed until the notice of appeal was filed, it was valid and binding. The law will not concern itself about such trifles. It looks to the substance, and not to the form, in such matters. It would have been more exact, perhaps, to have waited until after the notice of appeal was served before preparing the undertaking, but it was no such error or defect as could have affected the substantial rights of the respondent.

The other point of the motion referred to is groundless. The appellant did not need to serve the notice of appeal upon the attorney, Jolly. His having...