Ogden v. Hoffman

• Decision Date: 30 April 1918
• Citation: 172 P. 503,88 Or. 503
• Parties: OGDEN ET AL. v. HOFFMAN.
• Court: Oregon Supreme Court

172 P. 503

88 Or. 503

OGDEN ET AL. v. HOFFMAN.

Supreme Court of Oregon

April 30, 1918

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by Ida E. Ogden, F. S. Hoffman, Curtis Hoffman, Cora Oens and Ida E. Ogden as assignee of W. H. Hoffman, deceased heirs of Geo. Thomas Hoffman, deceased, against Emaline Jane Hoffman, administratrix of the estate of Geo. Thomas Hoffman deceased. From decree dismissing appeal from the probate court, plaintiffs appeal. On motion to dismiss. Appeal dismissed, with judgment against plaintiffs and their sureties for costs.

This is a motion to dismiss an appeal. The facts are as follows: The plaintiffs, deeming themselves aggrieved by a decree of the county court sitting in probate, appealed to the circuit court where, upon motion of the defendant, their appeal was dismissed, said order being made December 27, 1917. On January 31, 1918, plaintiffs served upon John N. Sievers, one of defendant's attorneys, a notice of appeal to this court, which notice was filed with the clerk with due proof of service on February 1, 1918, and also filed on the same date their undertaking on appeal. No exception was taken to the sufficiency of the sureties, so that on February 7, 1918 the plaintiffs' appeal became perfected, and it was their duty, if they desired to be heard here, to file their transcript with the clerk of this court within 30 days from that date. L. O. L. § 554. Failing to do this or to obtain an extension of time, they must be deemed to have abandoned the appeal. L. O. L. § 554, subd. 3.

The plaintiffs, on February 13, 1918, served and filed a new notice of appeal and undertaking. The appeal being from the same decree, both the attorneys for defendant accepted service. In the second notice of appeal appears the following statement:

"This notice of appeal is now given for the reason that the notice of appeal heretofore given was given before judgment for costs was entered and was served upon John N. Sievers only. This notice of appeal will be relied on by the appellants herein."

On March 12, 1918, the transcript on appeal was filed in this court.

C. D. Purcell, of Sandy, and Henry S. Westbrook, of Portland, for appellants.

Chas. T. Sievers and John N. Sievers, both of Oregon City, for respondent.

McBRIDE, C.J. (after stating the facts as above).

Plaintiffs' rights under the first notice of appeal expired March 10 1918, and, that...