Wagner v. City of Portland

• Citation: 60 P. 985,37 Or. 389
• Parties: WAGNER v. CITY OF PORTLAND.
• Decision Date: 05 May 1900
• Court: Supreme Court of Oregon

60 P. 985

37 Or. 389

WAGNER v. CITY OF PORTLAND.

Supreme Court of Oregon

May 5, 1900

Appeal from circuit court, Multnomah county; Alfred F. Sears, Judge.

Action by Henry W. Wagner against city of Portland. Motion to dismiss appeal denied.

Thomas O'Day, for the motion.

J.M Long, opposed.

PER CURIAM.

This is a motion to dismiss the appeal herein for two reasons: First the abstract of record contains no assignment of errors relied upon for a reversal of the case; and, second appellant has not filed its brief within the time required by the rules of this court.

The procedure on appeal has been materially amended by the late act of the legislative assembly. Sess.Laws 1899, p. 227. A party may now appeal by giving notice in open court, or before the judge thereof at chambers, at the time of the rendition of the order, judgment, or decree, that he appeals therefrom, or from some specified part thereof; or, if not taken at the time, he may appeal by causing a notice signed by himself or attorney to be served on the adverse party or parties that have appeared in the action, and such notice shall be sufficient if it contains the title of the cause, the names of the parties and notifies the adverse party, or his attorney, that an appeal is taken to the higher court (designating it) from the judgment, order, or decree, or some specified part thereof. It will be observed that it is not necessary to specify or assign errors in the notice of appeal, as was formerly the case. The rules of the court were adopted in view of the old law, and hence, under rule 9 (24 Or. 599, 37 P. vii.), it is prescribed that, if the appeal is from a judgment in an action, the appellant shall set out in his abstract of record those assignments of error in the notice of appeal on which he intends to rely, and none other. As the law now requires no assignments of error in the notice of appeal, it is urged that under rule 9 no statement of errors in the abstract is necessary, and that rule 10 (37 P. viii.), providing that where an abstract has been served no question appearing upon the record will be examined or considered on the hearing in this court except such as may arise upon the assignments of error contained in the printed abstract, is thereby rendered nugatory, in so far as it may pertain to actions at law. There is much force in the contention, for, under the present law, at least, it is not clear what assignments of...