Pond v. Jantzen Knitting Mills

• Decision Date: 22 April 1947
• Parties: POND <I>v.</I> JANTZEN KNITTING MILLS, A CORPORATION
• Court: Oregon Supreme Court

187 Or. 697

180 P.2d 115

POND

v. JANTZEN KNITTING MILLS, A CORPORATION

Supreme Court of Oregon.

Submitted on motion to dismiss appeal April 22, 1947.

Denied May 2, 1947. Opinion on the Merits see 183 Or. 255, 190 P. (2d) 141

Appeal and error — Undertaking not served and filed within ten days after service of notice of appeal — Motion for dismissal

1. Where undertaking was not served and filed within ten days after service of notice of appeal, respondent could have moved for dismissal and court in its discretion, according to whether respondent had been prejudiced thereby or not, grant or refuse to grant such motion on such terms and conditions as should be just. O.C.L.A. § 10-803, subd. 2, § 10-807.

Appeal and error — Failure of appellant to perform any of the acts required by statute within time required

2. Under statute providing that failure of appellant to perform "any of the acts herein required" within the time required shall constitute an abandonment of the appeal, etc., the quoted phrase includes every act which sections 10-803 and 10-807 require of an appellant. O.C.L.A. §§ 10-803, 10-807.

Appeal and error — Appeal — Abandoned — Thirty days

3. An appeal has not been abandoned unless an act which the appellant should have performed remains neglected when notice was served and continues neglected for 30 days thereafter. O.C.L.A. §§ 10-803, 10-807.

Appeal and error — Undertaking on appeal not served and filed within time required — On file for more than a month before notice of failure given by respondent

4. Where undertaking on appeal was not served and filed within time required by statute but had been on file for more than a month before notice of such failure was given by respondent, appellant could do nothing more, and appeal could not be considered abandonded because appellant did not seek consent of appellate court or judge thereof within 30 days after such notice for the filing of a new undertaking. O.C.L.A. §§ 10-803, 10-807.

Appeal and error — Statute — Abandonment of appeals — Motion for dismissal — Mere notice to counsel is insufficient

5. One who wishes to take advantage of statute relating to abandonment of appeals must sign, serve, and file with clerk of appellate court a paper which, in addition to designating the act which appellant failed to perform, moves for a dismissal of the appeal, and a mere notice to counsel for respondent is insufficient. O.C.L.A. §§ 10-602, 10-612, 10-803, subd. 1. Appeal and error — Statute — Abandonment of appeals — Good cause — Deny motion to dismiss

6. Under statute relating to abandonment of appeals, the court may, for good cause shown, deny motion to dismiss. O.C.L.A. § 10-803.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Platt & Platt and Black & Kendall, of Portland, for motion.

James Arthur Powers and Thomas H. Tongue, III, of Portland, contra.

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY, HAY and WINSLOW, Justices.

Action by Ada Pond against Jantzen Knitting Mills. From a judgment for plaintiff for $18,500, the defendant appeals. On respondent's motion to dismiss appeal on ground that appellant had abandoned it.

MOTION DENIED.

ROSSMAN, C.J.

This matter is before us upon a motion made by the respondent for an order dismissing this appeal. The motion is based upon a contention that Oregon Laws 1943, chapter 119, requires a holding that the appellant abandoned this appeal.

November 26, 1946, the circuit court entered judgment in favor of the respondent and against the appellant in the sum of $18,500. January 20, 1947, the appellant served on counsel for the respondent a notice of appeal and filed it January 21, 1947. February 1, 1947, the appellant served and filed an undertaking on appeal.

The issue submitted to us is governed by Oregon Laws 1943, chapter 119, which amended §§ 10-803 and 10-807, O.C.L.A. Subdivision 2 of § 10-803 says:

"Within ten days from the giving of notice or service of notice of appeal, the appellant shall cause to be served on the adverse party or his attorney an undertaking as hereinafter provided, and within said 10 days shall file the original of said undertaking * * *."

It will be recalled that the notice of appeal was served January 20. It is apparent that the undertaking was neither served nor filed on time.

March 4, 1947, the appellant filed a motion for an extension of time for presenting and settling a bill of exceptions. At that time, according to respondent's counsel, they discovered that more than ten days had passed between the service of the motion of appeal and the service of the undertaking. March 5, 1947, they wrote a letter to the appellant's counsel stating:

"Your appeal bond in this case was not served or filed until twelve (12) days following service of notice of appeal and was, therefore, not in conformity with the statutory requirements applicable to appeal to the Supreme Court of Oregon in a case of this kind. Although you have presumably at all times had knowledge of this matter, we herewith serve you with formal notice thereof. * * * In the event you desire to continue the prosecution of this appeal, it is our suggestion that you forthwith initiate and take such steps as you deem necessary in order to submit the matter to the Supreme Court for its ruling."

When the appellant served its motion for an extension of time, the respondent's counsel endorsed upon it their consent, but added the following:

"* * * As to the appeal proper, respondent does not waive the apparent insufficiency which exists by reason of the fact that the appeal bond was not served and filed within ten days after the service of the notice of appeal * * *."

Concurrently with the penning of that endorsement, respondent's counsel mailed to the clerk of this court a copy of their letter of March 5.

Section 10-803, O.C.L.A., as amended by Oregon Laws 1943, chapter 119, section 1, says:

"Upon notice of appeal being given, as herein provided, and entered in the journal of the court or filed with the clerk of the court, as the case may be, the appellate court shall have jurisdiction of the cause and not otherwise."

Prior to the enactment of that measure, § 10-807, O.C.L.A., after making provision for the filing of the transcript on appeal, said:

"After compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise."

By virtue of that sentence, which was repealed by Oregon Laws 1943, chapter 119, section 2, this court did not obtain jurisdiction over an appealed cause until a proper transcript was timely filed. See subdivisions 21 and 27 of the annotation to § 10-807 in 2 O.C.L.A., and also State v. Stone (Or.), 166 P. (2d) 980. The purpose of the sentence which we quoted from amended § 10-803 is obvious. It is to render notice of appeal as the incident which confers jurisdiction upon this court over the cause. Before going on, we direct attention to the fact that amended section 10-803 demands that a notice of appeal, in order to confer jurisdiction upon this court over the appealed cause, must (1) "be entered in the journal of the court", if the notice was given in open court or in chambers, and (2) be signed, served and filed "with proof of service indorsed thereon, with the clerk of the court," if the notice was written. Under this altered procedure this court acquires jurisdiction about a month and a half earlier than previously; its jurisdiction is acquired before the appellant is required to serve and file the undertaking. Section 10-803, in its amended form, next says:

"After the appellate court has acquired jurisdiction of the appeal in the manner hereinabove provided, the omission of a party to perform any of the acts herein required or within the time required shall be a cause for dismissal of the appeal, and the appellate court may, on motion of the respondent, dismiss the appeal; * * *."

When it developed at the end of the tenth day that no undertaking on appeal had been filed, the provision just mentioned would have authorized the filing of a motion for the dismissal of this appeal. We now proceed to the next clause of § 10-803:

"Provided, however, the appellate court shall, upon good cause shown, relieve the party from his failure to comply with any of such provisions and may permit an amendment or performance of such act on such terms as may be just."

Appellants sometimes neglect to take timely a required step in the process of appeal. The provision just quoted enables this court to relieve, for good cause and upon just terms, a tardy appellant from the consequences of his tardiness concerning acts required by amended §§ 10-803 and 10-807. See Williams v. Ragan, 174 Or. 328, 143 P. (2d) 209. In the present instance, it appears that appellant's counsel was not conscious of the fact that the undertaking on appeal was not served and filed seasonably. He had miscalculated time. But the respondent does not claim that she was prejudiced by the fact that the schedule of events contemplated by the statute was not maintained. A sufficient undertaking has been served and filed. The respondent finds no fault with it.

1. To avoid being misunderstood, we shall say again that when it developed at the close of the tenth day that the appellant had failed to file an undertaking on appeal, the respondent could have moved for a dismissal of the appeal. The words which we quoted from § 10-803, in its amended form, authorize such motions and confer upon this court ample discretionary power to deal justly with them. The words we have in mind include the following:

"the omission of a party to perform any of the acts herein required or within the time required shall be a cause for dismissal * * *; the appellate court shall, upon good cause shown, relieve a party from his failure to comply with any of such provisions and may permit an amendment or performance of such act on such terms as may be just."

Those provisions...