Appeal
from Circuit Court, Multnomah County; John H. Stevenson
Judge.
Action
by the City of Portland against Sarah Palmer Richardson and
C. E. Gedamke. From the judgment, defendant Gedamke appeals.
On motion to dismiss appeal. Appeal dismissed.
C. O
Fenlason, of Portland, for the motion.
C. A
Appelgren, of Portland, opposed.
BROWN
J.
This is
a motion to dismiss an appeal, based upon the alleged failure
of the appellant to pursue the remedy prescribed by section
554, Or. L., as amended by chapter 316, General Laws of
Oregon 1927. Among other things, this section provides:
"Upon the appeal being perfected the appellant shall
within thirty days thereafter, file with the clerk of the
appellate court a transcript or * * * abstract. * * *
"If the transcript or abstract is not filed with the
clerk of the appellate court within the time provided, the
appeal shall be deemed abandoned, and the effect thereof
terminated, but the trial court or the judge
thereof, or the supreme court or a justice thereof, may, upon
such terms as may be just, by order enlarge the time for
filing the same, but such order shall be made within the time
allowed to file transcripts, and only after three
days' notice has been given to the opposing party;
provided, that nothing contained in this act shall prevent
the trial court or a justice of the supreme court from
permitting an extension of time for the filing of a
transcript in any appeal, at any time in accordance with and
upon written stipulation and agreement of the attorneys for
all of the parties in interest."
The
respondent's motion asserts that, within the 30 days next
following the perfection of his appeal, the appellant failed
to have the time for filing the transcript enlarged, and that
that transcript was filed long after the expiration of the
time limited by law. The record discloses that the trial
court did make an order attempting to enlarge the
appellant's time for filing his transcript; but this
order omits to show that it was made "only after three
days' notice [or any other notice] had been given to the
opposing party."
In an
attempt to support the order made by the court, the attorney
for appellant filed the following affidavit (omitting title
of cause and venue):
"I, C. A. Appelgren, being first duly sworn, depose and
say:
"That I am the attorney for the appellant herein.
"That more than three days before the order was made by
the lower court extending the time for filing the transcript
herein, I called the office of C. O. Fenlason, the attorney
for the respondent herein, on the telephone, and requested to
speak with said C. O. Fenlason, and the office girl answered,
'Just a minute;' whereupon I was connected with said
Mr. Fenlason.
"That I then informed Mr. Fenlason that it
seemed necessary for me to procure an extension of time in
which to file the transcript, for the reason that the court
reporter had told me that it would be impossible for him to
extend the testimony before the expiration of the time
allowed for filing the transcript, and that at the same time
I asked Mr. Fenlason if this would be satisfactory to him, or
if he had any objection thereto.
"That Mr. Fenlason replied thereto that it would be all
right with him, and that he did not care, or words to that
effect.
"That more than three days after this conversation, and
finding that the reporter would be unable to finish the
extension of the testimony in time, I procured the order
extending the time to file transcript until October 15, 1928,
informing the court that I had by phone notified the opposing
counsel and that he had made no objection to the extension of
the time. * * *"
The
respondent's counteraffidavit follows (omitting title of
cause and venue):
"I, C. O. Fenlason, being first duly sworn, depose and
say:
"That I have read the affidavit of C. A. Appelgren,
attorney for the appellant defendant, C. E. Gedamke, and that
I have no recollection or record whatsoever of the
conversation referred to and detailed in said affidavit, and
deny that any such conversation, or any conversation, was had
within three days, or at any time, prior to the taking of the
order by said attorney for extending the time in which to
file the transcript."
In the
absence of the notice prescribed by section 554, Or. L., as
amended, the trial court was without jurisdiction to make the
order. The order upon its face omits to state whether any
notice, either verbal or written was given to the respondent,
nor was the respondent present in court at the time the order
was made. Early in the history of our
commonwealth, the lawmaking body, realizing the frailty of
human memory, prescribed the rule that notices in judicial
proceedings should be in writing. In 1862, the Legislative
Assembly of the state of Oregon passed
an act, entitled "An act to provide a Code of Civil
Procedure," which was thereafter approved and became
effective June 1, 1863. See Deady's Compilation of Laws
of Oregon, 1845-1864, p. 139. In the matter of "Notices,
and Service and Filing of Papers," that Code provided,
at section 516:
"Notices shall be in writing, and notices and other
papers shall be served on the party or attorney in the manner
prescribed in this title, where not otherwise provided by
this Code."
This
provision of law, which was taken bodily from the laws of...
