Carter v. Simpson Estate Co.

• Decision Date: 14 December 1920
• Citation: 103 Or. 383,193 P. 913
• Parties: CARTER v. SIMPSON ESTATE CO. ET AL.
• Court: Oregon Supreme Court

193 P. 913

103 Or. 383

CARTER v. SIMPSON ESTATE CO. ET AL.

Supreme Court of Oregon

December 14, 1920

In Banc.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by Cecil C. Carter against the Simpson Estate Company and others. Judgment for defendants, and plaintiff appeals. On motion of respondent corporation to dismiss and affirm. Motion overruled, on condition.

This is a motion to dismiss an appeal, upon the grounds: (1) That the abstract was not filed within the time prescribed by the rules of this court or by any order of this court; (2) that such abstract does not contain an index as required by rule 11 of this court; (3) that there is not appended to the abstract of each paper reference to the page of the transcript on which such paper will be found; and (4) that the abstract does not concisely assign the errors relied upon for reversal.

George P. Topping, of Bandon, and A. G. Thompson, of Myrtle Point for appellant.

Arthur H. Derbyshire, of North Bend, for respondent Simpson Estate Co.

Austin S. Hammond, of Myrtle Point, for respondent Bones.

McBRIDE C.J.

The first ground assigned does not appear to be well taken. The transcript on appeal was filed here on October 4, 1920, and according to rule 6 of this court (173 P. viii) it became the duty of the appellant within 20 days thereafter to prepare and serve his printed abstract, and within 5 days after such service to file in this court 16 copies thereof, accompanied by proof of service. By stipulation of the parties, the appellant was granted by this court additional time to "prepare and serve" on respondent an abstract, such time to extend to and include November 6, 1920. Nothing is said in the order as to the time of filing here, and a fair construction of the rule would leave appellant 5 days after November 6 within which to file the required number of copies of the abstract with the clerk of this court. Such copies were filed here on November 9, 1920, and were within time.

Another objection is that there is no index to the abstract, and this is admitted. But in extenuation of this omission appellant sets forth in an affidavit by his attorney the following:

"In reference to an index to said abstract, will say that the printer of the local paper at Myrtle Point, Or., has had little experience in preparing and printing abstracts; that I gave him for a copy an abstract in another case, which was indexed according to rules of the Supreme Court, but in his rush at the last hour he neglected to prepare and insert in said abstract an index, and in my anxiety to get the same served on time I overlooked the index, having in mind at

...