Cole v. Willow River Land & Irrigation Co.

• Decision Date: 12 September 1911
• Parties: COLE v. WILLOW RIVER LAND & IRRIGATION CO.
• Court: Oregon Supreme Court

117 P. 659

60 Or. 594

COLE v. WILLOW RIVER LAND & IRRIGATION CO.

Supreme Court of Oregon

September 12, 1911

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Action by Leonard Cole against the Willow River Land & Irrigation Company. Judgment for plaintiff, and defendant appeals. On motion to reinstate appeal. Motion denied.

Richards & Haga (Wheeler & Hurley, on the brief), for appellant.

John L Rand (M.D. Clifford, on the brief), for respondent.

PER CURIAM.

In this case the notice of appeal, with proof of service thereof indorsed thereon, together with the undertaking on appeal was filed in the circuit court on February 8, 1911. No exceptions to the sufficiency of the sureties having been made within five days thereafter, as provided by L.O.L. § 550, subd. 2, the appeal was perfected from and after February 13, 1911. "From the expiration of the time allowed to except to the sureties in the undertaking or from the justification thereof, if excepted to the appeal shall be deemed perfected." L.O.L. § 550 subd. 4. Rule 37, governing the practice in this court (50 Or. 589, 91 P. xiii) requires that, "in cases for hearing at Pendleton, the appellant, except in equity cases to be tried anew, must serve a brief containing a concise statement of the errors relied upon, within thirty days after the appeal is perfected." Under this rule the brief of the appellant was due to be filed on or before March 15 1911; but it was not filed until May 2d of that year. On the same day the respondent, claiming by an unverified statement in his motion that until that time he had had no notice that the brief had not been filed, moved to dismiss the appeal. Although this motion was served on counsel for appellant at the time of filing, no opposition to it was made in any way for more than 10 days thereafter, and on July 5, 1911, there still being no opposing paper presented to the court, an order was entered dismissing the appeal. Rule 14 (50 Or. 579, 91 P. x); Commercial National Bank v. Temple, 109 P. 129; State v. Horn, 39 Or. 152, 65 P. 1066; Shafer v. Beecher, 54 Or. 273, 101 P. 899; Smith v. Smith, 105 P. 706.

This action of the court is justified, not only by the precedents above cited, but also by rule 20 (50 Or. 581, 91 P. xi), as amended and adopted October 5, 1909, reading thus: "All motions and papers supplemental or opposed thereto must be filed with the clerk and served on the opposite party or his counsel, who, within ten days from such service, is required to file and serve an answering paper on the moving party or his counsel, or he shall be deemed to have confessed the motion. The moving party, after being served with an answering paper, may, within five days, serve and file a reply. All motions must be filed within ten days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction." For failure of the appellant to file and serve an answering paper against the motion of respondent to dismiss the appeal within 10 days after service thereof, the appellant is deemed by the terms of the rule to have confessed the motion.

It contends now, among other things, that respondent must have known from March 15th, the date when appellant's brief was due, that no such brief had been filed, because none had been served on him. But this conclusion does not necessarily follow, because there is no rule forbidding the filing of papers without service thereof, and this is of frequent occurrence. Moreover, the fact, if it be a fact, that the respondent had knowledge of the failure of the appellant to file its brief for more than 10 days before filing the motion to dismiss would more properly be a matter to be brought to the court's attention by the appellant in the answering paper mentioned in the rule. The party filing a motion is not required to negative in advance the possibility that for more than 10 days he has had notice of the defects of which he complains. His waiver is a matter of defense, to be urged by his adversary.

By the affidavit of one of appellant's counsel it is represented to the court that he was misled into what he claims would amount to excusable neglect on his part by the language of this court in Shafer v. Beecher, 54 Or. 273, 101 P 899, by the construction placed upon rule 37 by the clerk of this court in a communication responding to appellant's request to have time extended in which to file appellant's brief and by the letters of respondent's counsel suggesting that, if appellant's attorneys would be present with its brief on the first day of the Pendleton term, the first Monday in May, they would argue the case on appeal, the respondent to take further time to file his brief. Whether the others of appellant's attorneys of record were misled in any manner does not appear. The affiant states that they (associate counsel) "took no action on the motion of respondent, but assumed that the matter would be attended to by me." Appellant's counsel did not accept the overtures of respondent's attorneys to be...