Hawthorn v. City of East Portland

• Decision Date: 17 April 1885
• Citation: 12 Or. 210,6 P. 685
• Parties: HAWTHORN and others v. CITY OF EAST PORTLAND.
• Court: Oregon Supreme Court

6 P. 685

12 Or. 210

HAWTHORN and others v. CITY OF EAST PORTLAND.

Supreme Court of Oregon

April 17, 1885

Appeal from Multnomah County. Motion to dismiss appeal.

Julius C. Moreland, for the motion.

S.R Harrington, contra.

THAYER J.

This motion was filed on the part of the respondent herein to dismiss the appeal taken from the circuit court for the county of Multnomah by the appellants. The grounds of the motion were that no undertaking on appeal had been filed as required by law. Upon the filing of said motion the appellant filed what is termed a cross-motion, for leave to perfect the said appeal by filing a new undertaking in this court. The filing of the latter motion is, in effect, a confession of the fact that no sufficient undertaking has been filed; and hence the only question for our determination is whether the appellant has shown such a mistake in omitting to perfect its appeal in the manner mentioned as will authorize this court to permit it now to correct the omission.

It appears that Mr. Harrington, the city attorney of the city of East Portland, was directed by the common council of that city to take an appeal in the case, and that he has been making efforts for some time in that direction; that some time in December last a notice of appeal was served upon the respondent, but was not perfected, and that on the sixteenth day of January, 1885, said city attorney prepared a notice of appeal in the case, and an undertaking, and that he delivered the undertaking to Mr. I.N. Saunders, the mayor of said city with directions to have it executed, and that subsequently and on the twenty-second day of January, 1885, he served the said notice on the respondent, and filed the same, with proof of service, in the office of the clerk of said circuit court.

It also appears that Mr. Saunders, who is the county clerk of said county of Multnomah, as well as mayor of said city, after receiving said undertaking procured it to be duly executed and thereupon, and on the seventeenth day of January, 1885, marked it filed as of that day, without having called Mr. Harrington's attention to the fact; that the latter, upon filing such notice of appeal, ascertained from the clerk said fact, and thereupon informed Mr. Saunders that he did not intend to have him file said undertaking until the service of the notice of appeal, and that he only delivered it to him to have it executed. The said undertaking was...