McCargar v. Moore
| Citation | 175 P. 77,89 Or. 597 |
| Parties | MCCARGAR ET AL. v. MOORE ET AL. |
| Decision Date | 24 September 1918 |
| Court | Supreme Court of Oregon |
Department 1.
Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.
On motion to recall mandate. Motion allowed.
For former opinion, see 173 P. 258.
Originally the plaintiffs began an attachment action against the defendant in the circuit court of Multnomah county and levied the writ upon property. The defendant gave bond to release the attachment with the Illinois Surety Company on his undertaking. Afterwards, without the consent of the surety judgment was rendered in that court against the defendant for the amount named in the complaint. The company moved the circuit court to open the case and allow it to defend, on the ground that the judgment was taken without notice to it, but the motion was overruled, and it appealed to this court. The plaintiffs moved to dismiss the appeal, but the question was reserved for final argument. 157 P. 1107. The motion was renewed at a later date and was allowed (171 P. 587), on the ground that the notice of appeal had not been served within the 60 days provided by the statute (L. O. L. § 550, subd. 5 Gen. Laws Or. 1913, p. 617). The costs of the appeal were thereupon taxed against the Illinois Surety Company and its surety on appeal, the New Amsterdam Casualty Company. 173 P. 258. Judgment was thereupon entered, not only dismissing the appeal, but also against the Illinois Surety Company and its surety, the New Amsterdam Casualty Company for the full amount of the judgment of the circuit court in the sum of $581.15, with interest from a date mentioned, and a mandate was issued to the circuit court accordingly. The case has now been heard on the motion of the New Amsterdam Casualty Company to recall the mandate and correct the judgment embodied therein, so that the same shall operate against it as dismissing the appeal, and for the costs and disbursements of this court on the motion to dismiss only and not for the principal judgment.
Thomas Mannix, of Portland, for the motion. F. S. Senn, of Portland (Senn, Ekwall & Recken, of Portland, on the briefs), opposed.
BURNETT, J. (after stating the facts as above).
The undertaking given by the New Amsterdam Casualty Company provided "that, if said judgment or any part thereof be affirmed, the appellant will satisfy the same so far as affirmed," having been given for a stay of proceedings as provided in section 551, L. O. L.
The judicial system of the state has not been changed otherwise than as provided in the amended form of article 7 of the state Constitution, adopted by the initiative process at the general election of November, 1910, and section 6 of the article as it formerly read remains in force, by which it is declared that:
"The Supreme Court shall have jurisdiction only to revise the final decisions of the circuit courts."
The only exception to this rule promulgated by the amendment referred to is that the court may in its own discretion take original jurisdiction in mandamus, quo warranto, and habeas corpus proceedings. Article 7, § 2. This court, therefore, is one of limited jurisdiction aside from the instances just mentioned. It cannot acquire authority to act, except in the manner provided by statute, in a case of the kind before us, and can exercise only power expressly conferred upon it by statute. Except in the stated instances of our original jurisdiction, authority of this court to hear and determine a case is derived from perfection of an appeal. That result is accomplished either by giving oral notice at the time of the rendition of the judgment appealed from, or by causing a notice to be served upon the adverse party, filing the original with proof of service indorsed thereon with the clerk of the court in which the judgment appealed from is entered, and by serving or filing an undertaking, all as provided by section 550, L. O. L., as amended by chapter 319 of the Laws of 1913, which section requires that the appeal shall be taken and perfected in the manner therein prescribed and not otherwise. There are provisions in section 554, chapter 320, Laws of 1913, about filing a transcript or an abstract within 30 days after the perfection of the appeal, and it is therein declared that:
"After compliance with the...
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