Smith v. Dwight

• Decision Date: 18 May 1915
• Citation: 80 Or. 1,148 P. 477
• Parties: SMITH v. DWIGHT.
• Court: Oregon Supreme Court

148 P. 477

80 Or. 1

SMITH v. DWIGHT.

Supreme Court of Oregon

May 18, 1915

In Banc.

Appeal from Circuit Court, Tillamook County; Webster Holmes, Judge.

Action by Lewis L. Smith against W. G. Dwight. From a judgment for plaintiff, defendant appeals. On motion to dismiss appeal. Motion denied.

C. W. Talmage and E. J. Claussen, both of Tillamook, for appellant. T. B. Handley, of Tillamook, and Frank Holmes, of McMinnville, for respondent.

EAKIN, P.J.

This is a motion to dismiss an appeal for a defect in a notice. This notice is admitted to be sufficient, except that it does not name the court to which the appeal is taken. The notice was served on the 16th day of February, 1915, and the motion to dismiss was served on the 14th of April, nearly two months afterward. An amended undertaking was given in response to the assignment in the motion to dismiss, which questions the sufficiency of the undertaking also. The new undertaking describes the judgment as being appealed to the Supreme Court of the State of Oregon, and remedies other defects therein. This amended undertaking should have been filed upon a leave obtained from this court, and as an independent pleading in said proceeding; but overlooking that omission, which is not questioned, it may be considered as in aid of the notice both as to the description of the court to which the appeal was taken and the judgment from which it is taken. Under the authority of Holton v. Holton, 64 Or. 290, 129 P. 532, 48 L. R. A. (N. S.) 779, the amended undertaking aids the notice of appeal by designating the court to which the appeal was taken. However, when an appeal is from a judgment of the circuit court which can be appealed only to the Supreme Court of the state, it would seem to be an immaterial error to omit the naming of such court. It is said in 2 Cyc. 813, that failure to specify the court to which the appeal is taken, there being only one court to which it may be taken, will not be considered as fatal to the jurisdiction of this court. In Holton v. Holton, supra, this point was made in the motion in that case, and the notice was held sufficient.

The motion to dismiss is denied.