In re Andersen's Estate

• Decision Date: 09 March 1920
• Citation: 188 P. 164,101 Or. 94
• Parties: IN RE ANDERSEN'S ESTATE. v. ANDERSEN. DE GOLIA
• Court: Oregon Supreme Court

188 P. 164

101 Or. 94

IN RE ANDERSEN'S ESTATE.

DE GOLIA v. ANDERSEN.

Supreme Court of Oregon

March 9, 1920

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

In the matter of the estate of Frederick Andersen, deceased. Proceeding by G. E. De Golia against Charles Andersen, administrator of the estate. From a judgment in favor of the former, the latter appeals. On motion to dismiss appeal. Motion overruled.

Norblad & Hesse, of Astoria, for appellant.

G. C. & A. C. Fulton, of Astoria, for respondent.

PER CURIAM.

This is a motion to dismiss the appeal. Judgment was rendered and entered on Monday, November 3, 1919. The notice of appeal was served and filed January 3, 1920. It is contended by respondent that the service and filing is one day late. Respondent cites the following sections of the Code:

"An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, or at the time of making the interlocutory order appealed from, shall be taken by serving and filing the notice of appeal within sixty (60) days from the entry of the judgment, order or decree appealed from. * * *" Section 550, L. O. L., as amended by Gen. Laws 1913, c. 319.

"The time within which an act is to be done, as provided in this Code, shall be computed by excluding the first day and including the last, unless the last day falls upon Sunday * * * or other nonjudicial day, in which case the last day shall * * * be excluded." L. O. L. § 531.

The method of computing time within which a notice of appeal should be served and filed may be said to have been in a state of uncertainty until the case of U.S. Nat. Bank v. Shefler, 77 Or. 579, 143 P. 51, 152 P. 234, in which case it was held by this court, though not without dissent, that the day following the entry of a judgment was to be excluded in the computation of time.

This rule, having been generally accepted by the profession, will be adhered to, although there are authorities holding a contrary doctrine.

Computing the time according to the rule in the case cited, the appellant is within the statute, and the motion to dismiss will be overruled.