Dibble v. David Hodes Co., Inc.
| Decision Date | 28 May 1929 |
| Citation | 277 P. 820,132 Or. 596 |
| Parties | DIBBLE v. DAVID HODES CO., INC. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; J. T. Brand, Judge.
Action by C. W. Dibble, doing business as the Prest-O-Graph Sign Service, against the David Hodes Company, Inc. From a judgment for plaintiff, defendant appeals. On plaintiff's motion to dismiss the appeal. Motion denied.
This case comes on to be heard on motion to dismiss the appeal. The action was instituted by plaintiff to recover money on a contract, and property belonging to defendant was attached. Bond was given to release the attachment by defendant with two sureties. Judgment was rendered in favor of plaintiff and entered January 25, 1929; notice of appeal was served January 28; the undertaking on appeal was served on the next day. An order was made extending the time in which to file the transcript in this court to the 30th day of March, 1929. Plaintiff moves to dismiss the appeal on the ground that the order extending the time in which to file the transcript was premature. Another order was entered on the 26th of March 1929, further extending the time in which to file the transcript here to April 10, 1929. Defendant urges that since the original order was made before the appeal was perfected, it was premature and therefore inefficacious. He further urges that, since the later order extending the time was not made within 30 days from the time the appeal was perfected, this court never acquired jurisdiction of the case.
The sureties who executed the bond to release the attachment also appear as sureties on the undertaking on appeal. In the judgment appealed from, said sureties are judgment debtors. Plaintiff contends, therefore, that the undertaking is insufficient.
Leo Levenson and Jaureguy & Tooze, all of Portland for appellant.
Henry Bauer, of Portland, for respondent.
COSHOW, C.J. (after stating the facts as above).
Plaintiff relies on the cases of Walker v. Fireman's Fund Ins Co., 122 Or. 179, 257 P. 701, Sitton v Goodwin, 119 Or. 74, 79, 248 P. 163, and Tallmadge v. Hooper, 37 Or. 503, 61 P. 349, 1127. Plaintiff's argument is based upon a technical construction of the word "within" as used in section 554, Or. L. The motion is ruled by White v. East Side Mill Co., 84 Or. 224, 161 P. 969, 164 P. 736; Vincent v. First Nat. Bank, 76 Or. 579, 143 P. 1100, 149 P. 938; Wolf v. City Railway Co., 50 Or. 64, 85 P. 620, 91 P. 460, 15 Ann. Cas. 1181; French v. C. F. & T. Co., 116 Or. 532, 241 P. 1010. In those cases the word "within" is given the meaning "not beyond." The policy of the law is to liberally construe the statutes giving a defeated litigant an appeal to this court. There is sound reason for construing the word "within" as meaning "not beyond 30 days from the date the appeal is perfected." The case of Walker v. Fireman's Fund Ins. Co. is consistent with this holding. The particular point here involved was not raised in that case. In that case the particular point in controversy was the sufficiency of the transcript of appeal to confer jurisdiction on this court. The statute was properly construed in the Walker Case. The order extending the time must be made before the appellant is in default. ...
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Dibble v. David Hodes Co., Inc.
...Sign Service, against the David Hodes Company, Incorporated. From a judgment for plaintiff, defendant appeals. Affirmed. See also 277 P. 820. defendant appeals from an adverse judgment rendered on the verdict of the jury. On April 2, 1926, the parties entered into the following contract: "T......