Lancaster v. McDonald

• Citation: 14 Or. 264,12 P. 374
• Parties: LANCASTER v. MCDONALD.
• Decision Date: 06 December 1886
• Court: Supreme Court of Oregon

12 P. 374

14 Or. 264

LANCASTER v. MCDONALD.

Supreme Court of Oregon

December 6, 1886

Appeal from circuit court, Douglas county.

C.A Sehlbrede, for respondent, Lancaster.

STRAHAN J.

The plaintiff commenced his action against the defendant before a justice of the peace of Yoncalla precinct, in Douglas county to recover against the defendant $76, where he had judgment for the full amount claimed, from which the defendant appealed to the circuit court. The defendant's notice of appeal is as follows:

"IN THE JUSTICE'S COURT FOR YONCALLA PRECINCT DOUGLAS COUNTY, STATE OF OREGON.

"J.H. Lancaster, Plaintiff, v. James McDonald Defendant.

"CIVIL ACTION TO RECOVER MONEY.

"To J.H. Lancaster, and C.A. Sehlbrede, his Attorney: You are hereby notified that James McDonald, the defendant, appeals to the circuit court of the state of Oregon for the county of Douglas, from the judgment of the justice's court for Yoncalla precinct, Douglas county, Oregon, given and entered therein in the above-entitled action on the fourth day of August, 1885, in favor of above-named plaintiff, and against the above-named defendant.

"JAMES MCDONALD, Defendant, in Person."

The following indorsement was on said notice when it was filed with the justice, on the twenty-seventh day of August, 1885:

"I hereby accept service of the within notice of appeal this twentieth day of August, 1885.

"C.A. SEHLBREDE, Atty. for J.H. Lancaster, Plff."

Also the following:

"I hereby certify that I served the within notice of appeal on the twenty-fourth day of August, 1885, and delivered a copy of the same on the twenty-fifth day of August, 1885, on the plaintiff in person or J.H. Lancaster.

"JOHN G. SAMLER, Constable."

The respondent appeared in the circuit court by his attorney, and filed a motion to dismiss the appeal on two grounds: (1) That no sufficient notice of appeal has been given; and (2) that the certificate of the justice of the peace who certified the transcript to this court is insufficient. The court sustained this motion, and dismissed the appeal, from which judgment this appeal is taken.

The respondent seeks to sustain the ruling of the court below on two grounds: (1) That the notice of appeal is fatally defective; and (2) that proof of service of the notice of appeal is not sufficient to give the circuit court jurisdiction.

There is no statute in this state defining what a notice of appeal shall contain, but the act regulating appeals from justices' courts (Gen.Laws, 471, § 69) provides: "An appeal is taken by serving a notice thereof on the adverse party, and filing the original, with the proof of service indorsed thereon, with the justice, and by giving the undertaking for the costs of the appeal, as hereinafter provided." "Notice," in the sense here used, simply means the making known to the adverse party the fact that an appeal is taken in the particular case. If the notice accomplishes this, and is in writing, the statute is complied with. No rigid technicality is, or ought to be, required or permitted.

In addition to the section noticed above, the Civil Code, § 523 prescribes a rule applicable to notices generally, and which I think may properly be applied to notices of appeal from justices' courts. The section is as follows: "A notice or other paper is valid and effectual, although defective either in respect to the title of the action or suit in which it is made, or in the name of the court or the parties, if it intelligibly refer to such action or suit." It is true this section, by its terms, only refers to defects in respect to the title of the action or suit, or the name of the court or the parties; still I think it furnishes the correct rule for determining the sufficiency of the notice in other respects. The test is, does the notice intelligibly refer to such action or suit? If it does, there is no reason for holding it to be defective or insufficient. In such case it cannot deceive or mislead the party for whom it is intended, and accomplishes every purpose designed by law; and such seems to have been the view taken by this court in Moorehouse v. Cox, 11 P. 71. In that case the defect was this: The notice of appeal described the judgment as having been rendered on the twenty-second day of December, whereas it appeared from the transcript to have been rendered on the twenty-second of November. LORD, J., said: "It is manifest from the notice itself, the undertaking filed, and the transcript, that it was a mere clerical oversight or mistake, and in no way could have misled or injured the respondent." The words of the extract which I have italicised furnish the true test, and are, in substance, of...