St. Martin v. Hendershott

• Citation: 82 Or. 58,151 P. 706
• Parties: ST. MARTIN v. HENDERSHOTT ET AL.
• Decision Date: 21 September 1915
• Court: Oregon Supreme Court

151 P. 706

82 Or. 58

ST. MARTIN v. HENDERSHOTT ET AL.

Supreme Court of Oregon

September 21, 1915

In Banc.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by Margaret St. Martin against W. M. Hendershott and others. Judgment for plaintiff, and defendants appeal. On motion to dismiss appeal. Motion denied.

H. B. Nicholas and W. C. Nicholas, both of Portland, and R. W. Nicholas, of Portland, for appellants. John Bayne, of Salem, and Richards & Richards, of Portland, for respondent.

EAKIN J.

The plaintiff moves to dismiss the appeal for the reasons: (1) That the record shows that this appeal is from a decree, and the testimony, depositions, and other papers containing the evidence, etc., do not accompany the transcript; (2) that the defendants failed to file their abstract within 20 days from the filing of the transcript as required by the rules of this court; and (3) the transcript and abstract do not intelligibly present any question to be decided by the court.

The transcript in this case consists of certified copies of the decree, notice of appeal, and undertaking. This is just such a transcript as is prescribed by section 554, L. O. L., as amended by Laws of 1913, p. 618, and is sufficient to give the court jurisdiction; but in equity cases the transcript of the testimony must accompany the transcript. This question of dismissing an appeal for the reason that it was not accompanied by the testimony was before this court in Neal v. Roach, 61 Or. 513, 107 P. 475, and the court said:

"When an appeal from a decree in a suit in equity which is to be tried anew on the testimony, and no transcript thereof has been sent up, the only question that can be considered is: Does the complaint state facts sufficient to constitute a cause of suit? Howe v. Patterson, 5 Or 353; Wyatt v. Wyatt, 31 Or. 531, 49 P. 855; Morrison's Estate, 48 Or. 612, 87 P. 1043. The sufficiency of the complaint, though not now challenged, is never waived, and may be objected to at the trial in this court, and, this being so, the motion to dismiss should be denied, and it is so ordered."

The defendants did not file their abstract within the 20 days allowed, but, as their action does not show any disposition to delay the hearing, we think they should be excused for the few days' delay in its filing.

When the case comes up for hearing the third objection may have merit, but that cannot be considered on a...