White v. East Side Mill & Lumber Co.

• Decision Date: 09 January 1917
• Court: Oregon Supreme Court
• Parties: WHITE v. EAST SIDE MILL & LUMBER CO.

161 P. 969

84 Or. 224

WHITE v. EAST SIDE MILL & LUMBER CO.

Supreme Court of Oregon

January 9, 1917

In Banc.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Lulu R. White, administratrix, against East Side Mill and Lumber Company. Judgment for plaintiff, and defendant appeals. On motion to affirm judgment. Motion overruled.

See also, 155 P. 364; 158 P. 173; 158 P. 527.

In this case a judgment was rendered in the circuit court in favor of the plaintiff on October 6, 1916. On the 21st of that month defendant served its notice of appeal, which was perfected on the 31st. No transcript having been filed in this court, the plaintiff moves for an affirmance of the judgment on the ground that the appeal has been abandoned. Resisting this motion, the defendant shows that the circuit court made an order on December 18, 1916, which, omitting the title of the cause, here follows:

"The above-entitled cause having come on regularly to be heard upon motion of Hamilton Johnstone, Esq., one of the attorneys for the above-named defendant, and it appearing to the court that heretofore, to wit, on October 21, 1916 the said Hamilton Johnstone Esq., having appeared in open court before me in support of a motion for extension of time within which to file transcript on appeal in the Supreme Court, and within which to file and settle bill of exceptions herein, the said defendant appearing on said October 21, 1916, by said Hamilton Johnstone, its attorney and plaintiff appearing by R. A. Sullivan, Esq., her attorney, and it further appearing that the court on said October 21, 1916, did order that the defendant be allowed an extension of time from day to day in this cause within which to file a transcript on appeal in the Supreme Court and to file and settle bill of exceptions herein, but that no written memorandum of said order was made on October 21 1916, and entered in the journal of this court, and the court having at the time of said order assured Hamilton Johnstone, Esq., attorney for said defendant, that no advantage would be taken of him or said defendant because of any delay in procuring extension of the stenographic notes of the testimony taken at the trial of the above cause, and it further appearing that the reason for the failure of the defendant heretofore to file a transcript on appeal and to file and settle bill of exceptions is due to no fault of the defendant or its attorneys, but to the unavoidable pressure of business devolving upon the court reporter of this department, and the court being fully advised in the premises, it is hereby ordered that said defendant have, and it is hereby granted, an extension of time to a date ten days from and after the date when the court reporter of this department shall file in this court a typewritten extension of the stenographic notes of the testimony taken at the trial of the above-entitled cause within which to file a transcript on appeal in the Supreme Court, appealing from the judgment heretofore rendered in the circuit court of the state of Oregon, for the county of Multnomah, in this action, and within which to file and settle bill of exceptions herein.

"And it is further ordered that this order be made and entered nunc pro tunc as of October 21, 1916, the date when this court made said order.

"Dated Portland, Oregon, December 18, 1916.

"[Signed] Henry E. McGinn, Judge."

Asher & Johnstone, of Portland, for appellant. Raymond A. Sullivan, of Portland, for respondent.

BURNETT, J. (after stating the facts as above).

In the act of February 28, 1913, it is laid down as a rule that:

"If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned, and the effect thereof terminated, but the trial court or the judge thereof, or the supreme court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same; but such order shall be made within the time allowed to file transcript, and shall not extend it beyond the term of the appellate court next following the appeal."

Earlier in this enactment it is said:

"Upon the appeal being perfected the appellant, shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the law or the rules of the appellate court may require, of so much of the record as may be necessary to intelligently present the question to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal. * * *"

In the present juncture there is a wealth of affidavit on both sides declaring the versions of respective counsel of what occurred in the circuit court on October 21st. With these in that respect we are not concerned as they amount to mere bickerings between court and counsel. The order above quoted, being the solemn act of a court, imports absolute verity which we cannot question. Therefore the matter must be determined by the proper construction to be given to that judicial utterance. It is contended that in fact the court made no order on the date last mentioned. But the certified exemplification before us declares in these words:

"That the court on said October 21, 1916, did order that the defendant be allowed an extension of time from day to day in this cause within which to file a transcript on appeal in the Supreme Court and to file and settle bill of exceptions herein."

It is argued that this is of no effect because made before the commencement of the thirty day period. The statute, indeed, says that such order shall be made...