Corder v. Speake

• Decision Date: 10 January 1898
• Citation: 37 Or. 105,51 P. 647
• Parties: CORDER v. SPEAKE.
• Court: Oregon Supreme Court

51 P. 647

37 Or. 105

CORDER v. SPEAKE.

Supreme Court of Oregon

January 10, 1898

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit by Fred W. Corder against Isabella Speake. From a judgment of dismissal, plaintiff appeals. Motion to dismiss. Denied.

C.M. Idleman, for the motion.

R.R Duniway, opposed.

MOORE C.J.

This is a motion to dismiss the appeal, and for an order directing plaintiff to pay defendant the sum of $250, to enable her to make a defense. The facts are: That on July 5, 1892, the circuit court of Multnomah county rendered a decree dissolving the marriage contract theretofore existing between the parties, restoring to defendant her maiden name, and awarding her the sum of $25 per month for her maintenance. That in December, 1895, defendant, having received but $175 on account of said award, commenced an action against plaintiff in the superior court of Alameda county, Cal., to recover the sum of $1,083.33, alleged to be due thereon which action is still pending in the court. That on January 30, 1896, the circuit court of Multnomah county overruled a motion by plaintiff to modify the order making a monthly allowance for defendant's maintenance, from which latter order no appeal had been taken. Thereafter plaintiff commenced this suit for the modification of the decree, alleging, in his complaint, that during the pendency of the original suit it was agreed between the parties that he should pay the sum of $25 per month for the period of one year only, which defendant agreed to accept in full satisfaction of all demands for her maintenance. That he was thereby led to and did believe that she would ask for and obtain a decree in accordance with this agreement, and, relying thereon, he did not appear in said suit, and had no knowledge of the provisions of the decree until defendant, in October, 1895, demanded the amount claimed to be due thereunder. That in December, 1895, he tendered to her the sum of $125, as the whole amount due under said agreement, which she refused to accept, but did not deposit it in court as a condition precedent to the relief demanded. That on January 26, 1897, the court, upon defendant's motion, supported by her affidavit that she was without means to employ counsel, ordered plaintiff to pay to its clerk the sum of $50 within 15 days, to enable her to make a defense; but, having neglected to comply therewith, the suit was dismissed, and plaintiff appeals.

A motion to dismiss an appeal or to affirm a judgment challenges the jurisdiction of the appellate court, or shows that the appellant, in the preparation of his case for trial has failed to comply with the rules of such court. 2 Enc.Pl. & Prac. 335; Swanson v. Leavens, 26 Or. 561, 40 P. 230. The transcript shows that the appeal was taken in the manner...