McKinney v. Nayberger
| Decision Date | 15 September 1931 |
| Citation | 138 Or. 203,295 P. 474 |
| Parties | MCKINNEY v. NAYBERGER ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.
Action by E. S. McKinney against D. M. Nayberger and another. From an adverse judgment, plaintiff appeals. On motion to dismiss appeal.
Motion denied.
S. J. Bischoff, of Portland, for the motion.
Everett I. Adcock and James H. Ganoe, both of Portland, opposed.
The respondent moves to dismiss this appeal upon the ground that the appeal has been abandoned by the appellant. The record inter alia, discloses the following facts: The judgment appealed from was rendered June 30, 1930. At that time appellant gave notice in open court of an appeal to this court, which was afterwards, on September 3, 1930, entered nunc pro tunc as of June 30, 1930. On July 8 1930, appellant filed an undertaking on appeal. No objections to the undertaking were filed. The appeal therefore became perfected July 14. Plaintiff had thirty days from that date within which to file the transcript in this court. Section 7507, Oregon Code 1930. Within that time, and on August 1, an order was entered in the circuit court extending the time within which the appellant could file his transcript on appeal to and including the 15th of September, 1930. On September 12, 1930, appellant filed his transcript of record in this court.
Taking these facts by themselves, there can be no question that the transcript was filed in time and the proceedings thus far were regular.
We now come to the controversial matters. By reason of the notice of appeal given on June 30, 1930, not having been entered at that time, appellant thereafter, on August 26, 1930, served and filed a new written notice of appeal, and on August 30 1930, plaintiff served and filed another undertaking on appeal.
It is well-settled that when a party abandons an appeal by allowing the time in which the transcript may be filed to expire without having filed such transcript, the appeal will be dismissed as abandoned. Ogden v. Hoffman, 88 Or. 503, 172 P. 503; Hill v. Lewis, 87 Or. 239, 170 P. 316; Columbia City Land Co. v. Ruhl, 70 Or. 250, 134 P. 1035, 141 P. 208; Moon v. Richelderfer, 56 Or. 246, 108 P. 178; Nestucca Wagon Road Co. v. Landingham, 24 Or. 439, 33 P. 983. Nevertheless, until an appeal is perfected, it may be abandoned and a new appeal taken. Van Auken v. Dammeier, 27 Or. 150, 40 P. 89; Holladay v. Elliott, 7 Or. 483.
Here, however, it is seen that the transcript on appeal...
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McKinney v. Nayberger
...Judge. Action by E. S. McKinney against D. M. Nayberger and another. From an adverse judgment, plaintiff appeals. Reversed. See, also, 295 P. 474. This an appeal from a judgment of involuntary nonsuit entered by the circuit court in an action wherein the complaint alleged that, in a suit fo......