Pedro v. Vey
| Decision Date | 22 January 1935 |
| Citation | 39 P.2d 963,150 Or. 415 |
| Parties | PEDRO et al. v. VEY et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Umatilla County; Calvin L. Sweek, Judge.
Action by Mary N. Pedro and another against Joe Vey and others. From the judgment entered, plaintiffs appeal and defendants cross-appeal. On respondents' and cross-appellants' motion to dismiss plaintiffs' appeal.
Motion denied.
Raley, Kilkenny & Raley, of Pendleton, for the motion.
James F. Ailshie, of C ur d'Alene, Idaho, R.I. Keator, of Bonners Ferry, Idaho, J. B. Perry, of Pendleton, and Burleigh & Burleigh, of La Grande, opposed.
On July 18, 1934, a judgment was entered against plaintiffs in the circuit court of the state of Oregon for Umatilla county. On September 15, 1934, plaintiffs filed notice of appeal, and on September 25, 1934, filed an undertaking thereon. To this undertaking no exceptions were filed; thus plaintiffs' appeal became perfected October 1, 1934. Oregon Code 1930, § 7-503, subd. 4. Appellants had until and including October 30, 1934, in which to file their transcript in this court. Id., § 7-507.
On October 20, 1934, appellants filed in said circuit court and served on respondents a motion asking for an order extending the time sixty days in which to file said transcript. On October 22, 1934, the circuit court entered an order granting said motion and extending the time as therein requested. The transcript was duly filed in this court on December 20, 1934 and within the time thus fixed by the said order.
On December 27, 1934, respondents moved to dismiss the appeal for the reason that the circuit court was without power to make the order of extension at the time it was made, having been made within the three-day period from the date of service of the motion on the respondents.
If the order extending the time is void, then the transcript was not filed within the thirty days from the time the appeal was perfected and the appeal should be considered abandoned. ***" Section 7-507, subd 2. The statute is mandatory in its provisions when a failure to comply therewith will injure the public or a third party. Simpson v. Winegar, 122 Or. 297, 256 P. 562,...
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