Dowell v. Bolt
| Citation | 75 P. 714,45 Or. 89 |
| Parties | DOWELL v. BOLT et al. |
| Decision Date | 01 March 1904 |
| Court | Supreme Court of Oregon |
Appeal from Circuit Court, Josephine County; H. K. Hanna, Judge.
Action by W.I. Dowell against John Bolt. From an order denying a motion of H.C. Austin, a subsequent judgment creditor of defendant Bolt, to set aside a judgment in favor of plaintiff, defendant Austin appeals. On motion to dismiss. Denied.
W.C Hale, for the motion.
This is a motion to dismiss an appeal. The defendant John Bolt, with the assent of the plaintiff, W.I. Dowell, executed to him a confession of judgment for the sum of $260 and costs, which in vacation, was entered in the journal of the circuit court for Josephine county, and, an execution having been issued thereon, certain placer mining claims in that county belonging to Bolt were sold to Dowell. H.C. Austin thereafter commenced an action against Bolt in that court, and, having secured a judgment therein for the sum of $164.93 attorney's fees, costs, and disbursements, and an order for the sale of these mining claims which had been attached in that action, moved to set aside the confession of judgment, on the ground that it did not state facts out of which the indebtedness arose. This motion was denied, and the sale made to Dowell of the mining claims confirmed, which judgment Austin sought to review by serving and filing a notice of appeal October 27, 1903, and 10 days thereafter filing an undertaking on appeal, which was not served on Dowell or his attorney, who move to dismiss the appeal for that reason. Notice of such motion having been served, Austin's attorney filed an affidavit to the effect that the failure to serve the undertaking was due to inadvertence and oversight, and the omission to comply with the statutory requirement was not called to his attention until after plaintiff's brief had been filed in this court; and, based on such written declaration under oath, he moved for leave to serve a copy of the undertaking, and to attach it to the transcript as a part thereof, and an amendment to the bill of exceptions.
It is contended by plaintiff's counsel that the service of an undertaking is a condition precedent to the exercise of the right of appeal, and, being jurisdictional, the motion to dismiss the appeal should be allowed. The statute prescribing the mode of taking and perfecting an appeal, so far as deemed material, is as follows: ...
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Burger v. Sinclair
...or similar to those characterizing this one.” The Oregon court, under a very similar appeal statute, also held in the case of Dowell v. Bolt, 45 Or. 89, 75 Pac. 714, as follows: “It is * * * the serving and filing of a notice of appeal within the time and according to the manner prescribed ......
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Harjo v. Aubrey
...which was done. The circuit court denied a motion to dismiss the appeal, and the supreme court affirmed this judgment. In Dowell v. Bolt, 1904, 45 Or. 89, 75 P. 714, a substantially the same as Sec. 1414 was considered, and it was held that the appellant should be permitted to file a bond, ......
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Krueger v. Hayko
...Or. 207, 175 P. 611, 176 P. 186; Union Cent. Life Ins. Co. v. Deschutes Valley Loan Co., 139 Or. 222, 3 P.2d 536, 8 P.2d 587; Dowell v. Bolt, 45 Or. 89, 75 P. 714. The appellant having failed to file his notice of appeal in the office of the clerk of the district court in which the judgment......
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Streby v. State Indus. Acc. Commission
... ... Gotfrey, 13 Or ... 466, 11 P. 190; Henness v. Wells, 16 Or. 266, 19 P ... 121; Taylor v. Lapham, 41 Or. 479, 69 P. 439; Dowell ... v. Bolt, 45 Or. 89, 75 P. 714." ... These ... authorities relate to the provisions of section 550, Oregon ... ...