Peterson v. Peterson

• Decision Date: 11 January 1956
• Citation: 292 P.2d 130,208 Or. 131
• Parties: D. S. PETERSON and Helyn F. Peterson, husband and wife, Plaintiffs-Appellants, v. Gordon M. PETERSON and Evangeline Peterson, husband and wife, Defendants-Respondents.
• Court: Oregon Supreme Court

Page 130

292 P.2d 130

208 Or. 131

D. S. PETERSON and Helyn F. Peterson, husband and wife, Plaintiffs-Appellants, v. Gordon M. PETERSON and Evangeline Peterson, husband and wife, Defendants-Respondents.

Supreme Court of Oregon, En Banc.

Submitted Jan. 10, 1956.

Decided Jan. 11, 1956.

Frank L. Whitaker, Portland, for appellants.

Goldstein, Galton, Galton & Popick, Portland, for respondents.

ROSSMAN, Justice.

The defendants-respondents move for an order to dismiss this appeal, and the plaintiffs-appellants move for an order granting them the privilege of making a correction in the notice of appeal. The motion to dismiss is based upon these contentions:

'* * * The Plaintiffs-Appellant have failed to file with the Clerk of this Court a transcript as required by the provisions of 19.070 O.R.S. within the time provided by law and that this appeal appears to have been abandoned by said Plaintiff-Appellant.'

The motion to amend and thereby correct the notice of appeal is predicated upon the fact that the caption of the notice of appeal inverted the names of the parties and the notice itself incorrectly stated that 'defendants appeal' whereas the plaintiffs are the appellants. Three days after the motion to dismiss was filed there came the supplementary motion to dismiss which charged that the appellants had not filed 'a proper Notice of Appeal.'

The following days and incidents are material. The decree challenged by the appeal was entered by the circuit court June 10, 1955. The notice of appeal and the undertaking on appeal were filed on, respectively, August 10 and August 22, 1955. Within five days of the time that the undertaking was filed the defendants-respondents filed a motion in the circuit court which read, in part, as follows:

'Comes now defendants, by and through their attorneys, Goldstein, Galton, Galton & Popick, and move the Court for an order to dismiss the appeal filed herein on the ground and for the reason that an undertaking was not filed within ten days' time after service of notice of appeal. * * *

'And, in the alternative, without waiving any of the rights heretofore set forth in the preceding motion,

'Notice is hereby given to plaintiffs and Berenice Cain, Surety, that defendants demand that you justify forthwith in the manner as bail upon arrest.'

That motion, to which we will shortly give attention, is not the one which is mentioned in the first sentence of this opinion. It was filed in the circuit court. December 20, 1955, the defendants-respondents filed in this court the motion to dismiss the appeal from which we quoted in the first paragraph. It is based, as we have said, in part upon the ground that the appellants have not filed the transcript which is required of appellants by ORS 19.070. Three days later, the defendants-respondents filed the supplemental motion to dismiss, which, after stating that the notice of appeal inverted the names of the parties and indicated that the defendants, rather than the plaintiffs, are the appellants, charges that 'the Plaintiffs-Appellant have not filed a proper Notice of Appeal.'

The above shows that the appeal is challenged by three motions to dismiss: (a) the motion filed in the circuit court in August, 1955, (b) the motion filed in this court December 20, 1955, and (c) the supplemental motion filed in this court December 23, 1955.

We will now consider together the supplemental motion and the motion made by the appellants for an order authorizing a correction in the notice of appeal. The caption of that paper inverted the names of the parties and in so doing identified the defendants with the term 'plaintiffs' and the plaintiffs with the word 'defendants.' However, the notice of appeal was addressed to 'Gordon Peterson and Evaneline Peterson.' They were the defendants in the trial court. Apart from the erroneous spelling of the name of the defendant, Evangeline Peterson, the notice of appeal was addressed to the right persons. It was also directed to 'Goldstein, Galton, Galton & Popick, their attorneys.' That firm was counsel for the defendants in the circuit court and represents them upon appeal. Through the errors just mentioned, the notice failed to state that the plaintiffs, D. S. Peterson and Helyn F. Peterson, appealed. The errors of which we have taken notice were shortly increased by three more. One of these caused the notice of appeal to say: 'take notice that defendants appeal' (the plaintiffs are the appellants). Next, counsel for the plaintiffs-appellants, in signing the notice of appeal, identified himself as 'attorney for defendants,' and then, as a finale to the comedy of errors, counsel for the defendants-respondents, in acknowledging service of the notice of appeal, signed themselves 'attorneys for plaintiff.' Such a chain of errors in the preparation of an instrument which confers jurisdiction upon a court deserves censure. In this instance, the errors are of the nettling type but scarcely important. It is clear from the recitals of the motion to dismiss that the errors above mentioned did not mislead or prejudice the defendants-respondents. Obviously, the transposition of the parties in the notice of appeal did not deceive the defendants into a belief that they were the appellants. Their motion to dismiss paid no attention to the mistakes, and correctly set forth the names of the parties. It properly identified D. S. Peterson and Helyn F. Peterson with the words 'Plaintiffs-Appellants' and then challenged the notice of appeal filed by the 'Plaintiffs-Appellant'. Likewise, the motion to dismiss which the defendants-respondents filed in the circuit court in August left unmentioned the mistakes found in the notice of appeal and it, too, accurately identified the parties. Thus it is apparent that the defendants-respondents promptly recognized the errors present in the notice of appeal and made the proper entries in their own papers. At that time they deemed the errors unworthy of mention. The notice of appeal described with precision the decree which the appeal sought to challenge and by so doing helped to neutralize the errors of which we have taken note. It was not until the supplemental motion to dismiss was filed that the defendants-respondents sought to take advantage of the slip-ups. That paper dwells upon the mistakes, but affords no basis whatever for a surmise that the mistakes misled or prejudiced the defendants. It is clear that the defendants noticed the errors when the notice of appeal was handed to them, but deemed them inconsequential. The supplemental motion has the savor of an afterthought. Since the plaintiffs-appellants have moved for an order permitting them to correct the mistakes, that motion is sustained. ORS 19.030(3). The supplemental motion to dismiss the appeal...