In re Johnson's Estate
| Decision Date | 19 February 1929 |
| Citation | 274 P. 918,131 Or. 235 |
| Parties | IN RE JOHNSON'S ESTATE. v. JOHNSON ET AL. JOHNSON |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.
Petition by Jacob Johnson in the matter of the estate of Charles A. Johnson, deceased, against F. O. Johnson and others. Decree adverse to petitioner, and he appeals. On motion to dismiss appeal. Motion denied.
C. M. Inman, of Salem, for the motion.
Guy O. Smith and W. C. Winslow, both of Salem, opposed.
Respondents move to dismiss this appeal for the reason that the appellant has failed to file a transcript of the decree appealed from within the time allowed.
Respondents in their brief state that "no transcript of the decree appealed from, as shown by the notice of appeal, has been filed in this appellate court, but the transcript on appeal contains only a transcript of a nonappealable order dismissing respondent's motion in the circuit court to dismiss the appeal to that court."
The copy of decree, contained in the transcript, shows, in substance, that a motion to dismiss the appellant's appeal to the circuit court was argued by counsel and the court took the same under advisement "and now being fully advised, it is ordered and decreed by the court that the respondents' Motion to Dismiss the appeal herein be and it is hereby dismissed." The decree of the court that "it is hereby dismissed" undoubtedly refers to the appeal from the county court to the circuit court. Evidently by a clerical error the word "allowed" is omitted after the words "herein be."
This error should unquestionably have been corrected in the circuit court, in order to save time and controversy; but we must construe the record as we find it. The only thing that appellant could safely do in the matter was to appeal from the decree. If such a decree was then actually rendered, the entry thereof could be made nunc pro tunc and cause confusion.
The motion to dismiss the appeal to this court is denied.
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Hall et Ux. v. Pettibone et al.
...to consider the testimony: State v. Stapleton, 139 Or. 402, 10 P. (2d) 600; Kruckman v. Smith, 126 Or. 395, 270 P. 474; Johnson v. Johnson, 131 Or. 235, 274 P. 918, 282 P. 5, 6. Generally, the jural instrument which terminates an action is deemed a judgment and that which ends a suit is a d......
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