Sutton v. Sutton

• Decision Date: 27 July 1915
• Parties: SUTTON v. SUTTON.
• Court: Oregon Supreme Court

150 P. 1025

78 Or. 9

SUTTON v. SUTTON.

Supreme Court of Oregon

July 27, 1915

In Banc.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Rosa B. Sutton against James N. Sutton, who cross-complained. From a judgment for defendant, plaintiff appeals. On motion to dismiss. Allowed on conditions.

H. E. Collier, of Portland, for appellant. Frederick H Drake, of Portland, for respondent.

McBRIDE J.

The plaintiff brought a suit against defendant for divorce, who answered with a cross-complaint, asking that he be decreed a divorce from plaintiff. Upon the trial there was a decree in favor of defendant, from which plaintiff appeals. The undertaking given by plaintiff complied in form and substance with the statute, except that by a clerical error the undertaking provided that:

"Appellant will pay all damages, costs, and disbursements which may be awarded against the defendant on the appeal."

Defendant's counsel filed a motion to dismiss the appeal on account of the insufficiency of the undertaking, but subsequently consented that plaintiff might file a new undertaking, and one was filed conditioned that plaintiff would pay all damages, costs, and disbursements which might be adjudged against her on the appeal, "not to exceed $100." Defendant's counsel moved to dismiss this appeal on account of the limitation as to the amount of the penalty. Plaintiff presents a cross-motion for leave to file a new undertaking, and presents an undertaking complete in every respect, except that the affidavit omits these words required by statute:

"That I am not a counselor or attorney at law, clerk of any court, or any other officer of any court"

--which renders it insufficient. Section 551, L. O. L., provides:

"The undertaking of the appellant shall be given * * * to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against him on the appeal."

The undertaking, having specifically limited the liability of the surety to $100, was therefore insufficient. State v. McKinmore, 8 Or. 207; Sanborn v. Fitzpatrick, 51 Or. 459, 91 P. 540. Section 550, L. O. L., as amended by chapter 319, General Laws of 1913, provides:

"When a party in good faith gives due notice as hereinabove provided of an appeal from a judgment, order or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in

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