Kerschner v. Smith

• Decision Date: 02 June 1925
• Citation: 236 P. 272,121 Or. 469
• Parties: KERSCHNER v. SMITH.
• Court: Oregon Supreme Court

236 P. 272

121 Or. 469

KERSCHNER v. SMITH.

Supreme Court of Oregon

June 2, 1925

In Bank.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by E. F. Kerschner against J. L. Smith. Judgment for plaintiff, and defendant appeals. On motion to dismiss appeal. Motion overruled.

H. F. McInturff, of Portland, and C. W. Robison, of Astoria, for appellant.

Louis V. Lundburg, of Portland, for respondent.

McBRIDE, C.J.

This is a motion to dismiss an appeal for the reason that the undertaking was not filed within 10 days from the filing of the notice of appeal.

The defendant in this case served his notice of appeal on the 7th day of February, 1925, and on the 19th day of February, 1925, he filed his undertaking, which was duly served on the plaintiff at that date. The plaintiff moves now to dismiss the appeal on the ground that the undertaking was not served within ten days from the filing of the notice of appeal. But, as it appears that the undertaking was served on the plaintiff's attorney on the 19th day of February, 1925, the plaintiff is within rule No. 23 of this court, which requires all motions to be filed within 10 days after a party or his attorney shall have obtained knowledge of the failure of the adverse party in any particular. The undertaking was, in fact, several days late, but, as plaintiff had knowledge of it on the 19th day of February, and did not file his motion to dismiss until March 26th, his motion comes too late, and is therefore overruled.