McKissick v. McKissick

• Decision Date: 10 September 1918
• Citation: 93 Or. 644,174 P. 721
• Parties: MCKISSICK v. MCKISSICK.
• Court: Oregon Supreme Court

174 P. 721

93 Or. 644

MCKISSICK v. MCKISSICK.

Supreme Court of Oregon

September 10, 1918

In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Divorce suit by Frances E. McKissick against Stuart McKissick. From an order refusing to modify that portion of the decree awarding the custody of a minor child to the plaintiff, the defendant appeals, and plaintiff moves to dismiss the appeal. Motion conditionally denied.

L. G. English and H. L. Ganoe, both of Portland, for appellant. J. Le Roy Smith, of Portland, for respondent.

McBRIDE C.J.

This is a motion to dismiss an appeal, the alleged grounds thereof being (1) that there was no service of a copy of the undertaking upon the respondent; and (2) that the order appealed from was not an appealable order, being a matter wholly withing the discretion of the trial court.

It appears from the record that upon the trial and final disposition of a divorce suit begun by plaintiff against the defendant, the court awarded the custody of a minor child of the parties to the plaintiff. Subsequently defendant applied to the court for a modification of that portion of the decree, giving the mother the custody of the child. His application being denied, he appealed to this court. Being unable to find plaintiff's attorney at his office defendant attempted to serve the undertaking by leaving a copy at his supposed residence. Plaintiff's attorney did not in fact reside at the place indicated, and the service was void. We are of the opinion that the appellant's attorney acted in good faith in attempting to serve the undertaking as recited, and that the case comes fairly within the provisions of subdivision 4, § 550, L. O. L., which is as follows:

"From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof if excepted to, the appeal shall be deemed perfected. When a party in good faith gives due notice as hereinabove provided of an appeal from a judgment, order, or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just."

Such is the holding in the case of Dowell v. Bolt, 45 Or 89, 75 P. 714.

In the present case a...