Currier v. Anderson

• Decision Date: 02 June 1931
• Citation: 136 Or. 440,299 P. 704
• Parties: CURRIER v. ANDERSON.
• Court: Oregon Supreme Court

299 P. 704

136 Or. 440

CURRIER v. ANDERSON.

Supreme Court of Oregon, En banc.

June 2, 1931

Appeal from Circuit Court, Malheur County; W. W. Wood, Judge.

Action by Robert Currier against Fred Anderson. From the judgment defendant appeals.

Affirmed.

Robt. D. Lytle, of Vale, for appellant.

BEAN C.J.

This is an action which originated in the justice's court for the district of Big Bend, Malheur county, Or. Issues were raised by a complaint, answer, and reply. Upon the trial the plaintiff obtained a judgment against the defendant in the sum of $179, with costs taxed at $35.80. The defendant appealed to the circuit court, where judgment was rendered on motion of the appellant to dismiss his appeal. The judgment recites that after the judgment in the justice's court within the time allowed by law, defendant duly appealed to the circuit court and perfected his appeal; "that upon said appeal the defendant executed and filed as a part of said appeal his bond and undertaking on appeal with Thos. Welsh and Frank Johns, both of Malheur County Oregon, as sureties, thereon, wherein and whereby said sureties undertook and promised that said defendant and appellant would pay all costs and disbursements that might be awarded against the defendant on said appeal, and also further undertook and agreed that said defendant would satisfy any judgment that might be given against him in the appellate court on said appeal."

The circuit court, on motion of appellant, rendered a judgment dismissing the appeal, and adjudged that "plaintiff Robert Currier have and recover of and from the defendant, Fred Anderson, and of and from his said bondsmen Thos. Welsh and Frank Johns, judgment for the sum of $179.00, together with costs and disbursements in the justice court taxed at $35.80 and costs and disbursements in this circuit court taxed at $16.70."

The defendant appeals from the judgment of the circuit court to this court, assigning error. The main contention of appellant is that the circuit court, not having acquired jurisdiction of the appeal, could not render judgment for plaintiff, it having authority only to dismiss the appeal.

Section 16-411, Oregon Code 1930, relating to actions and proceedings in justices' courts and appeals in civil actions, provides as follows: "The appellate court may dismiss an appeal from a justice's court if the same be not properly taken and perfected. When an appeal is dismissed the appellate court must give judgment as it was given in the court below, and against the appellant for the costs and disbursements of the appeal. When judgment is given in the appellate court against the appellant, either with or without the trial of the action, it must also be given against the sureties in his undertaking, according to its nature and effect."

Plaintiff contends that the "dismissal" in the justice's court, after which judgment may be entered, comprehends a decision by the court and not a voluntary dismissal or withdrawal of the appeal by counsel for both appellant and respondent.

Defendant cites the case of Whipple v. Southern Pacific Co., 34 Or. 370, 55 P. 975, where it was held when an appeal from a justice's court was dismissed the only judgment that could be rendered was one of dismissal and not in favor of the appellant as in the justice's court. Since the rendition of that opinion the statute quoted above took effect. That statute added the first sentence, to the law as it formerly stood, which is as follows: "The appellate court may dismiss an appeal from a justice's court if the same be not properly taken and perfected." This describes the condition of the present appeal from the justice's court to the circuit court. Appellant failed to file a transcript within the time provided by law, and the appeal was not...