Hanley v. Stewart

• Decision Date: 01 June 1909
• Citation: 54 Or. 38,102 P. 2
• Parties: HANLEY v. STEWART.
• Court: Oregon Supreme Court

102 P. 2

54 Or. 38

HANLEY v. STEWART.

Supreme Court of Oregon

June 1, 1909

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Action by E.B. Hanley against W.H. Stewart. From a judgment for plaintiff, defendant appeals. Appeal dismissed.

C.L. Reames, for the motion.

W.I Vawter, opposed.

MOORE C.J.

This is a motion to dismiss an appeal. The facts are that a decree in this suit was given September 11, 1908, and and 11 days thereafter a notice and an undertaking on appeal were served and filed. No exception was taken to the sufficiency of the sureties on the undertaking, and the appeal was perfected September 27, 1908 (B. & C. Comp. § 549), but no abstract or transcript on appeal was filed within 30 days therefrom, as required. B. & C. Comp. § 553. The trial court, on motion of the appellant, December 16, 1909, dismissed the notice of appeal and all proceedings had in reference thereto. Another notice and an undertaking on appeal were thereafter served and filed, and the transcript was sent up to this court within 30 days from the filing of the second undertaking. The statute prescribes the time and manner of taking appeals, and contains a clause as follows: "When a party in good faith gives due notice *** of an appeal from a judgment order, or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just." B. & C. Comp. § 549, subd. 4. The "other act" thus referred to, which is "necessary to perfect the appeal or to stay proceedings," is the filing of an undertaking on appeal, an omission to do which, through mistake, when the party has acted in good faith, has always been supplied, upon application therefor. Matlock v. Wheeler, 29 Or. 64 40 P. 5, 43 P. 867; Elwert v. Norton, 34 Or. 567, 51 P. 1097, 59 P. 1118; Mendenhall v. Elwert, 36 Or 375, 52 P. 22, 59 P. 805; Nottingham v. McKendrick, 38 Or. 495, 57 P. 195, 63 P. 822.

When an appeal is perfected, the authority of a court to allow an alteration or the completion of some act relating to the filing of a proper undertaking necessarily ceases. Nor is it requisite that power to set aside a notice of appeal and an undertaking should exist; for, when the appellant discovers...