Henrichsen v. Smith

• Court: Oregon Supreme Court
• Writing for the Court: [29 Or. 477] PER CURIAM.
• Citation: Henrichsen v. Smith, 29 Or. 475, 42 P. 486 (Or. 1895)
• Decision Date: 18 November 1895
• Parties: HENRICHSEN v. SMITH et al.

42 P. 486

29 Or. 475

HENRICHSEN v. SMITH et al.

Supreme Court of Oregon

November 18, 1895

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by L.C. Henrichsen against W.K. Smith and others, in which there was a judgment for plaintiff. After defendant served notice of appeal, and filed it, with proof of service and an undertaking, in the trial court, and after the death of the trial judge before a bill of exceptions could be settled, his successor granted defendant a new trial. Plaintiff moves in the supreme court for an affirmance under rule 14 (37 P viii.), relating to abandoned appeals. Motion denied.

T.H. Bartlett, for appellants.

R.R Giltner, for respondent.

PER CURIAM.

This is a motion under rule 14 (37 P. viii.) to affirm a judgment on an alleged abandoned appeal. In February, 1895 plaintiff recovered a judgment against the defendant in the circuit court of Multnomah county, Or., before the late Judge Hurley, from which he took an appeal a short time afterwards by serving a notice thereof, and filing the same, with proof of service, together with an undertaking, in the court below and in due time prepared and presented to the trial judge his bill of exceptions for allowance, but before the same could be settled the judge died, whereupon Judge McGinn, successor of Judge Hurley, before the time for filing the transcript had expired, set the judgment aside, and ordered a new trial upon defendant's motion, on the ground that, having no authority to sign a bill of exceptions in a case tried before his predecessor, the defendant would be deprived of the right of appeal if his motion was denied. The appellant therefore proceeded no further with his appeal, and the respondent now brings into court a copy of the judgment, undertaking, notice of appeal, and proof of service thereof, and moves for an affirmance under rule 14. From this statement it will be seen that the question sought to be determined in this proceeding is the validity of the order of Judge McGinn setting aside the judgment and granting a new trial, but we have no jurisdiction to determine that question. Under the statute this court does not acquire jurisdiction to hear and determine a cause unless the transcript is filed by the second day of the ensuing term after the appeal is perfected or within such further time as may be allowed in the manner provided by law. Hill's Ann.Laws, § 541. The requirements of...