Neppach v. Jones

• Decision Date: 03 December 1894
• Citation: 28 Or. 286,39 P. 999
• Parties: NEPPACH v. JONES et al.
• Court: Oregon Supreme Court

39 P. 999

28 Or. 286

NEPPACH v. JONES et al.

Supreme Court of Oregon

December 3, 1894

Appeal from circuit court, Multnomah county.

Action between Anthony Neppach and J.H. Jones and others. From a judgment on the pleadings, Neppach appeals. Motion for affirmance denied.

Ira Jones, for the motion.

H.B. Nicholas, opposed.

PER CURIAM.

The respondents move for an affirmance of the decree in this case, because (1) appellant's abstract is not in the form required by rule 9 of this court, and (2) his brief was not served as required by rule 6; while the appellant asks to be relieved from his default.

1. The abstract is in the form required by the rules, except that it does not contain a formal statement of errors. The appeal is from a decree given on the pleadings, and, although the abstract is defective, as claimed, it does nevertheless sufficiently appear therefrom that the alleged error upon which the appellant intends to rely is the action of the trial court in sustaining the defendants' motion for a decree on the pleadings, and it therefore accomplishes the purpose intended by the rules, and is a substantial compliance therewith.

2. The brief was not served until two days after the expiration of the time allowed by rule 6, but from the affidavit of counsel for appellant in support of his motion it satisfactorily appears that the failure to serve his brief in time is due to the neglect and delay of the printer, and not to any fault of the appellant. For this reason his motion should be allowed. While the court expects and will require counsel to substantially observe the rules in the preparation and service of abstracts and briefs, yet if, through excusable neglect, the service is not made in time, the court may relieve the party in default, on a proper showing, from the consequences thereof. The rules were designed and intended to facilitate the business and simplify the practice, and are not so arbitrary or inflexible as to work an injustice, or prevent a hearing in this court, when the failure to comply therewith is owing to the excusable neglect of the party. The motion for an affirmance must be overruled, and appellant's motion to be relieved from his default in not serving his brief within time allowed; the respondents to have 20 days from this date in which to serve and file their brief.