Duffy v. MacMahon

• Citation: 47 P. 787,30 Or. 306
• Parties: DUFFY v. MacMAHON et al. [1]
• Decision Date: 08 February 1897
• Court: Supreme Court of Oregon

47 P. 787

30 Or. 306

DUFFY v. MacMAHON et al. ^[1]

Supreme Court of Oregon

February 8, 1897

Appeal from circuit court, Multnomah county; E.D. Shattuck. Judge.

Action by John F. Duffy against M.J. MacMahon and others. There was judgment for plaintiff, and defendants appeal. Dismissed.

L.R Webster, for the motion.

E Mendenhall, opposed.

PER CURIAM.

This is a motion to dismiss an appeal. The plaintiff, on March 3 1896, obtained a judgment in the circuit court for Multnomah county against the defendants, for $293.43 and interest thereon from that date at the rate of 10 per cent. per annum $50 attorney's fees, and the costs and disbursements of the action, from which the defendants attempted to appeal but in the notice thereof they describe a judgment as having been given March 2, 1896. for "the sum of two hundred and fifty dollars and interest from the 8th day of May, 1894 amounting to the sum of $_____, for the sum of fifty dollars attorney's fees, and for his costs and disbursements." The plaintiff, contending that the notice fails to identify the judgment complained of, moves to dismiss the appeal. The judgment rendered by the court on March 3d provides for interest at the rate of 10 per cent. per annum; and as the statute declares that "judgments and decrees for money upon contracts bearing more than six per centum interest, and not exceeding ten per centum per annum, shall bear the same interest borne by such contracts" (section 3591, Hill's Ann.Laws Or.), it must be presumed that the judgment complained of was rendered upon a contract bearing 10 per cent. interest. The legal rate in this state is 8 per cent. per annum on money due or to become due where there is a contract to pay interest and no rate specified (section 3587, Id.); and as the defendants, in their notice of appeal, described a judgment for $250, with interest from May 8, 1894, amounting to $286.33, it is evident there is a variance between the judgment given by the court and the one described in the notice, in the following particulars: (1) In the date of its rendition; (2) in the amount for which the judgment was given; and (3) in the rate of interest. This court, in Crawford v. Wist, 26 Or. 596, 39 P. 218, in discussing the sufficiency of a notice of appeal, says: "The tendency of the court, as indicated by recent decisions, is to construe notices of appeal liberally, and hold them sufficient if, by fair construction or...