Columbia City Land Co. v. Ruhl

• Decision Date: 09 September 1913
• Parties: COLUMBIA CITY LAND CO. v. RUHL.
• Court: Oregon Supreme Court

134 P. 1035

70 Or. 246

COLUMBIA CITY LAND CO. v. RUHL.

Supreme Court of Oregon

September 9, 1913

Appeal from Circuit Court, Columbia County; J.A. Eakin, Judge.

Action by the Columbia City Land Company against Charles S. Ruhl. From a decree determining the boundary between the contiguous lands of the parties, the plaintiff appeals. Motion of the respondent to dismiss the appeal denied.

L.K Adams, of Portland, and George M. McBride, of St. Helens, for appellant.

Dillard & Day, of St. Helens, for respondent.

MOORE J.

This is a motion to dismiss an appeal. A decree was rendered in this cause December 18, 1912, establishing a boundary between contiguous lands of the parties hereto, and appointing commissioners to mark upon the ground the dividing line thus ascertained. Desiring to review such determination, the plaintiff on June 2, 1913, caused to be served and filed a notice of appeal but did not serve or file an undertaking therefor until the 13th of that month. Attempting to abandon the experiment undertaken to secure a reversal of the decree the plaintiff on June 21, 1913, caused to be served and filed another notice of appeal and an undertaking thereon. The transcript having been filed with our clerk, this motion was interposed, based on the grounds, inter alia, that the order appealed from is not final, and that the attempt to take a second appeal was not made until after the expiration of the time prescribed.

Considering these reasons in the order stated, the decree complained of ascertained the location of the boundary by course and distance from a given point, and left to the commissioners the exercise of no discretion or judgment, but required of them the performance of a ministerial duty only by indicating, by proper monuments, where the dividing line was thus ascertained to be. The decree sought to be reviewed was a final determination of the issues involved, within the meaning of section 548, L. O.L. Marquam v. Ross, 47 Or. 374, 78 P. 698, 83 P. 852, 86 P. 1.

No appeal in this cause having been taken when the decree was rendered, six months from the entry thereof were originally allowed in which to take an appeal. L.O.L. § 550, sub. 5. This statute was amended by abridging the six months, thus permitted to initiate a review of a judgment or decree, to 60 days. Laws Or. 1913, c. 319. The amendment referred to contains a clause as follows: "Provided, that in all cases where the right to an appeal to the Supreme Court shall exist at the time this act shall come into force, the time for taking such appeal is hereby extended for the period of sixty (60) days thereafter." This later enactment contained no emergency clause, and took effect 90 days from the end of the session at which it was passed. Const. Or. art. 4, § 28. The session of the legislative assembly at which the amendment was passed ended March 4, 1913 (Laws Or. 1913, p. 866), and hence the act went into effect June 3d following.

It is argued by defendant's counsel that as the first notice of appeal was served and filed prior to June 3, 1913, and as the attempt to abandon such undertaking to review the decree was not made until June 21, 1913, the right to appeal did not exist when the amendment referred to took effect, and hence the enactment did not extend the time for taking the appeal which limit expired six months after the entry of the decree, or on June 18, 1913. An appeal is taken by a party to a judgment or decree by giving in open court, at the time the determination is entered, an oral notice of appeal, or by serving upon the adverse party or his attorney, and filing with the clerk of the trial court at any time within six months from the entry of the decree or judgment, a written notice of appeal. An appeal is perfected by serving and filing, within 10 days from the giving of such notice, an undertaking on appeal. The adverse party is allowed five days within which to...