Everding & Farrell v. Gebhardt Lumber Co.
| Decision Date | 26 November 1918 |
| Citation | 176 P. 186,90 Or. 207 |
| Parties | EVERDING & FARRELL v. GEBHARDT LUMBER CO. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Yamhill County; Geo. G. Bingham, Judge.
On petition for rehearing. Petition denied.
For former opinion, see 175 P. 611.
See also, 86 Or. 239, 168 P. 304.
J. Bruce Polwarth, of Portland, J. E. Burdett, of McMinnville, and Magill & McKenney, of Portland, for petitioner.
Frank Holmes, of McMinnville, and Joseph & Haney, of Portland opposed.
The appellant in its petition for rehearing calls attention to the fact that the copy of the notice of appeal contained in the transcript has no mark indicating the date when it was filed, and argues in substance, this being the case, the court should presume that it was filed within 60 days from the date of the rendition of the judgment appealed from. Upon the former hearing it was set forth in the motion to dismiss that the notice was not filed until after the expiration of 60 days, and this was not denied, although voluminous affidavits were filed to excuse the delay, from which the court assumed that the actual date of filing appeared in the transcript. It now appears that there was nothing in the transcript to indicate when the notice was filed, or indeed that it was ever filed, except that in some way the original was in possession of the clerk when the transcript was prepared and sent up.
There is no presumption as to when an attorney files a paper, or that he has filed it within the time prescribed by statute. Service and filing of a notice of appeal within 60 days after the rendition of the judgment are acts absolutely necessary to give the court jurisdiction, and, unless the appealing party brings to this court a transcript showing affirmatively that both these acts have been performed, it is the duty of the court when that fact is brought to its notice to dismiss the appeal. The burden is not upon a respondent in such event to produce evidence showing a want of jurisdiction, but upon the appellant to make a record showing jurisdiction. The statute requiring a notice of appeal to be served and filed within 60 days is neither harsh nor technical. The time prescribed is ample and a compliance with the requirements of the law easy; but, even if it were otherwise, this court must abide by the statute which has time and again been held to be mandatory. Oliver v. Harvey, 5 Or. 360; State v Zingsem, 7 Or....
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