Anderson v. Phegley

102 P. 603 | Or. | 1909

Mr. Justice McBride

delivered the opinion of the court.

1. Respondents concede that, if a sufficient notice of appeal was served and a proper undertaking filed, the order of confirmation is void. They challenge both the sufficiency of the notice and the undertaking. The notice, omitting the title of the court and the cause is as follows:

“Notice is hereby given that the defendant Emma G. Robinson appeals to the Supreme Court of the State of Oregon from all of the judgment and decree entered in the above-entitled court and cause, excepting those portions thereof whereby, this defendant, Emma G. Robinson is adjudged and decreed to have certain liens upon the property described in said decree and is to receive certain sums in case of the sale of the said property. Among the particular portions of said judgment and decree from which this defendant appeals are those adjudging and decreeing liens for any sums in favor of plaintiffs or any of them against the property in said decree mentioned or any part thereof, and from those portions giving judgment for any sum against this defendant.”

We think the notice of appeal is sufficient. Previous to the amendments of 1899 and 1901 (Laws 1899, p. 228; Laws 1901, p. 77), a very strict rule prevailed, in respect to the certainty with which the judgment or decree appealed from should be described in the notice. Up to the date of these amendments there had been no statutory definition of what should constitute a sufficient notice. It was, no doubt, in view of this fact and of the hardships entailed by the strictness theretofore required, that the legislature saw fit to use this language:

“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 supreme or circuit court, as the case may be, from the judgment, order, or decree, or some specific part thereof.”

This notice exactly follows the statute, and, examining the transcript, it is easily seen that respondents could not fail to know what decree was appealed from.

2. This court, in Keady v. United Ry. Co., (100 Pac. 658), a case occurring since the amendment of 1899, supra, had occasion to construe this statute on a motion to dismiss the appeal, and the views therein expressed are in line with our views in the case at bar. To speculate that, perhaps, there might be two decrees between the same parties in different suits, having the same title, is to suggest an improbability that it is unprofitable to pursue. When a case is brought before us, supported by affidavits and certified copies of the records, showing such a state of fact, it will be time to decide what ought to be done. The court fixed the value of the use and occupation of the land at $1,500, and this amount was included in the undertaking on appeal. In other respects the undertaking is in the usual form and appears sufficient. It is objected that, as this is mining property held only by performing the annual labor required by the laws of the United States, which in this case would amount to about $3,000, appellant should have been required to give an undertaking conditioned in a sufficient amount to cover any loss by possible forfeiture of the property by reason of failure to perform the required assessment work. We recognize that there is some force in respondents’ contention; but, as the law has not provided for such a contingency, neither this court nor the court below had any authority to require such an undertaking.

3. We are of the opinion that, while the appeal would only be perfected from the expiration of the time required to object to the sufficiency of the sureties, it operated as a supersedeas from the date of its service and filing, namely, March 29, 1909. 20 Enc. Pl. & Pr. 1227, 1229; Sam Yuen v. McMann, 99 Cal. 497 (34 Pac. 80) ; Mirick v. Hill, 30 N. Y. Supp. 853.

4. The sheriff should have continued the sale until after the time limited for objection to the sufficiency of the sureties, and then, in default of such objection, he should have released the property.

5. The order confirming the sale herein is set aside, and this cause is remanded to the lower court, with directions to require the sheriff to put appellant in possession of the property described in the execution and order of sale, pending the decision of the principal case on appeal. Reversed.