Quartz Gold Min. Co. v. Patterson

• Decision Date: 14 July 1908
• Citation: 96 P. 551,53 Or. 85
• Parties: QUARTZ GOLD MINING CO. v. PATTERSON et al.
• Court: Oregon Supreme Court

96 P. 551

53 Or. 85

QUARTZ GOLD MINING CO. v. PATTERSON et al.

Supreme Court of Oregon

July 14, 1908

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Action by the Quartz Gold Mining Company against C.A. Patterson and another. Judgment for plaintiff, and defendants appeal. On motion to dismiss and for affirmance. Denied.

J.A Beckwith, for the motion.

H.W Strong and H.H. Riddell, opposed.

PER CURIAM.

This is a motion to dismiss an appeal and for an affirmance of the judgment. The notice of appeal was served on the 19th and filed on the 20th of December, 1907. On the 30th of the same month an order of the court below was entered extending the time "in which defendant may perfect his appeal" 30 days. The undertaking on appeal was filed January 24, 1908. On March 2d an entry was made nunc pro tunc of an order of the 21st of February, extending the time in which to file the transcript 30 days. On March 21st what purports to be a transcript was filed in this court, but contains no bill of exceptions or findings of fact by the trial court. Accompanying the transcript are two packages of papers and a record book, which would seem to have been used or prepared for use, as evidence, but they are not certified to or in any way identified. Respondent moves to dismiss the appeal, because neither the undertaking nor the transcript was filed within the time required by law, and the evidence and exhibits are not duly certified, and, if this motion is not well taken, it moves for an affirmance of the judgment for a failure of appellant to file an abstract within the time required by the rules of this court. The undertaking was filed without leave of the court, in reliance no doubt on the order of December 30th extending the time in which to perfect the appeal, and, if appellant was mistaken in his interpretation of that order, the appeal ought not to be dismissed, but he should be given permission to file a new undertaking. The court has always pursued a liberal policy in relieving an appellant from default in this regard, and has even permitted an undertaking to be filed after the notice to dismiss has been submitted. Mendenhall v. Elwert, 36 Or. 375, 52 P. 22, 59 P. 805. The transcript was filed within the time extended by the court below. It is true the order was not entered within the time. But, when a judgment has been rendered or order made and the clerk has failed or neglected...