Cauldwell v. Bingham & Shelley Co.

• Decision Date: 23 February 1916
• Citation: 155 P. 190,84 Or. 257
• Parties: CAULDWELL v. BINGHAM & SHELLEY CO. ET AL.
• Court: Oregon Supreme Court

155 P. 190

84 Or. 257

CAULDWELL v. BINGHAM & SHELLEY CO. ET AL.

Supreme Court of Oregon

February 23, 1916

In banc. Appeal from Circuit Court, Multnomah County; George R Bagley, Judge.

Action by Isabella Cauldwell against the Bingham & Shelley Company and others. From a judgment for defendants, plaintiff appeals. Motion to dismiss appeal denied.

The defendant Bingham & Shelley Company, a private corporation moves to dismiss the appeal prosecuted by plaintiff. A judgment in favor of defendants was entered on July 29, 1915 and all that followed occurred in the same year. The plaintiff filed and served a notice of appeal on September 23d, and on September 28th an undertaking on appeal was served and filed. A proposed bill of exceptions was tendered to and received by the trial judge on September 23d. The bill of exceptions was settled and allowed on September 28th, and it was filed with the county clerk on October 5th. Certified copies of the judgment, notice of appeal, and undertaking on appeal, constituting the technical transcript, were filed in this court on October 28th, and on the same day the bill of exceptions was filed here. On November 17th, pursuant to a written stipulation signed by the attorneys of record, the court extended the time for filing an abstract of record to and including November 29th, and the abstract was filed on November 29th.

P. H. Murdoch, H. E. Hall, and Arthur I. Moulton, all of Portland, for appellant. Sheppard & Brock, Stapleton &amp Sleight, and Coy Burnett, all of Portland, for respondents.

HARRIS J. (after stating the facts as above).

Within 5 days after the service of the undertaking on appeal the adverse party shall except to the sureties in the undertaking, or be deemed to have waived the right to except. From the expiration of the time allowed to except to the sureties, "the appeal shall be deemed perfected." Section 550, L. O. L., as amended by chapter 319, Laws of 1913. The fifth day after September 28th, when the undertaking was filed, fell on Sunday, October 3d, and consequently the appeal became perfected with the expiration of Monday, October 4th. Pringle Falls Power Company v. Patterson, 65 Or. 474, 128 P. 820, 132 P. 527.

Unless the time is extended by an appropriate order of the court the appellant must file the transcript within 30 days after the appeal is perfected. Section 554, L. O. L., as amended by chapter 320 of Laws of 1913. The statute...