Russell v. Smith

Decision Date29 June 1920
Citation190 P. 715,96 Or. 629
PartiesRUSSELL v. SMITH.
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Crook County; T. E. J. Duffy, Judge.

Action by G. H. Russell against C. Sam Smith. From a judgment for defendant, plaintiff appeals. On motion to dismiss. Appeal dismissed.

M. E. Brink and Jay H. Upton, both of Prineville, for appellant.

M. R. Elliott, of Prineville, for respondent.

McBRIDE, C.J.

This is a motion to dismiss an appeal. The defendant received a judgment in the court for costs and disbursements, from which judgment plaintiff appealed.

The judgment was rendered on February 17, 1920, and the notice of appeal and undertaking were served on defendant on April 10, 1920. The appeal was therefore perfected on April 16, 1920. No order extending the time to file a transcript on appeal appears of record. Section 554, L. O. L., as amended by chapter 320, Gen. Laws of 1913, requires that the appellant shall file a transcript on appeal within 30 days after the appeal has been perfected. The transcript was therefore due here at the latest on the 17th day of May, 1920, but no transcript has been filed. Defendant moves to dismiss the appeal.

Subdivision 2 or section 554, supra, provides that if the transcript is not filed within the time provided, or within any extension of such time, the appeal shall be dismissed. Subdivision 3 provides that upon such dismissal the judgment may be enforced by the appellate court against the appellant and his sureties.

The appeal will therefore be dismissed and the judgment affirmed, both against the appellant and his sureties, with defendant's costs and disbursements in this proceeding.

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4 cases
  • Sprague v. City of Astoria
    • United States
    • Oregon Supreme Court
    • March 14, 1922
    ...Kelley v. Pike, 17 Or. 330, 20 P. 685; Emery v. Brown, 63 Or. 264, 127 P. 682; Chandler v. Todd, 95 Or. 430, 188 P. 161; Russell v. Smith, 96 Or. 629, 190 P. 715. order enlarging the time for filing the transcript in the case at bar was made within the time allowed to file such transcript. ......
  • Hollinger v. Blair
    • United States
    • Oregon Supreme Court
    • September 26, 1974
    ...effect. Shortly after that decision, however, what is now ORS 53.110 was enacted. Oregon Laws 1899, § 49, p. 118. In Russell v. Smith, 96 Or. 629, 630, 190 P. 715 (1920), it was held under that statute that if such an appeal is dismissed for failure to file the transcript within the specifi......
  • McCargar v. New Amsterdam Casualty Co.
    • United States
    • Oregon Supreme Court
    • October 10, 1922
    ... ... 113, 105 P. 403; Emery v ... Brown, 63 Or. 264, 127 P. 682; Gross v. Gage, ... 77 Or. 422, 149 P. 939, 151 P. 655; Russell v ... Smith, 96 Or. 629, 190 P. 715; Peterson v. Beals et ... al., 102 Or. 245, 201 P. 727 ... The ... defendant ... ...
  • Currier v. Anderson
    • United States
    • Oregon Supreme Court
    • June 2, 1931
    ... ... 444] the rule ... prevailing in this court under section 7-507, subd. 3, Oregon ... Code 1930 (see Russell v. Smith, 96 Or. 629, 190 P ... 715), and provides that the party against whom judgment is ... rendered in the justice's court shall not ... ...

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