Hilts v. Hilts

• Decision Date: 08 June 1903
• Parties: HILTS v. HILTS.
• Court: Oregon Supreme Court

72 P. 697

43 Or. 162

HILTS v. HILTS.

Supreme Court of Oregon

June 8, 1903

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Action by J.M. Hilts against Rachel Hilts. Judgment for defendant and plaintiff appeals. Appeal dismissed.

J.D Slater, for appellant.

J.W Knowles, for respondent.

WOLVERTON J.

This is a motion by respondent to dismiss the appeal because (1) the transcript was not filed in this court within the time required by law, or any extension by the trial court; and (2) the notice of appeal was not served upon the district attorney. This motion was argued and submitted on the first day of the term, but, reserving its decision thereon, the court subsequently heard the case upon its merits. In the view we take of the matter, a decision upon the first ground assigned in the motion will dispose of the case.

By order of the trial court, made and entered November 5, 1902 the time within which defendant was required to file the transcript of the cause in this court was enlarged to the 3d of the following month. It was received on that date by the deputy clerk at Pendleton, and a notation made in the docket of its receipt; but the filing fee of $15, which should accompany it, remaining unpaid until December 16th, it was not filed until the latter date. It may be noted, however, that upon receipt of the transcript the deputy clerk, by mistake, notified the attorney for respondent of the failure to forward the filing fee, but, upon being informed of his mistake, notified appellant's attorney, who at once forwarded it. The appellant insists that, notwithstanding this state of the case, there has been a proper filing of the transcript within the prescribed time, and that he is therefore entitled to a decision upon the merits. The statute provides, in effect, that, upon an appeal being perfected, the appellant shall, within 30 days, or within such extension of time as the trial court, or judge thereof, or the Supreme Court, or a justice thereof, may allow, file with the clerk of the Supreme Court a transcript, or such an abstract as the rules of the appellate court may require, and that upon the filing thereof he shall pay to such clerk the sum of $15, which, with all other fees collected by virtue of his office, shall be paid to the state treasurer. B. & C. Comp. §§ 553, 887. The general rule operating under ordinary statutes regarding the filing of a paper or document is that it is filed when delivered to the proper officer, and by him received to be kept on file. Bouvier's Law Dict. (Rawle's Rev.); 13 Am. & Eng.Encyc.Law (2d Ed.) 15; McDonald v. Crusen, 2 Or. 258; Moore v. Willamette, T. & L. Co., 7 Or. 359; Powers v. State, 87 Ind. 144; Peterson v. Taylor, 15 Ga. 483, 60 Am.Dec. 705; Floyd v. The Chess-Carley Co., 76 Ga. 752; Gorham v. Summers, 25 Minn. 81; Reed v. Acton, 120 Mass. 130; Tregambo v. Comanche M. & M. Co., 57 Cal. 501. But a filing may depend upon the terms of the statute authorizing it, and will not become operative until the requisites are first complied with, at least in substance; and, if a fee is made a necessary prerequisite thereto, no filing is accomplished or effected without the payment of such fee. To illustrate: Under an Indiana statute, the Secretary of State was required to exact certain fees for filing and recording an agreement of railroad companies to consolidate, which provided that he should neither file nor record any of such articles unless all the fees for filing were first paid; and it...