104 P. 963 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
1. Plaintiff sued to restrain defendant from disposing of a two-thirds interest in certain logs, lumber, and other property, in Union County, upon which it claimed to have a mortgage given by one W. R. Kivette. The property mortgaged was partnership property, owned by a firm composed of Kivette and the defendant; Kivette having a two-thirds interest and defendant a one-third. The com
Plaintiff had a decree in the court below, but contends that the court erred in allowing defendant the sum of $375 for services in managing the property. Upon an examination of the testimony in the whole case, we do not think the allowance inequitable.
This case was argued as though there had been a cross-appeal by defendant; but no transcript of the notice of appeal or undertaking was filed by defendant, and no extension of time for so doing appears anywhere in the record; nor has any fee for filing such transcript been paid to the clerk. If any appeal was attempted, it must be deemed to have been abandoned. Defendant, not having perfected his appeal, must be held to be satisfied with the decree of the court below. Shook v. Colohan, 12 Or. 239 (6 Pac. 503) ; Shirley v. Burch, 16 Or. 83 (18 Pac. 351: 8 Am. St. Rep. 273) ; Thornton v. Krimbel, 28 Or. 271 (42 Pac. 995) ; Cooper v. Thomason, 30 Or. 162 (45 Pac. 296) ; Goldsmith v. Elwert, 31 Or. 539 (50 Pac. 867) ; Board of Regents v. Hutchinson, 46 Or. 57 (78 Pac. 1028.)
The decree of the lower court is affirmed, and defendant shall recover costs in this court Affirmed.
Rehearing
On Motion foe Rehearing.
2. It is contended on motion for rehearing that the rule announced in our former opinion in this case (104 Pac. 963) is erroneous in holding that, where no cross-appeal is taken, a respondent will be treated as satisfied with the
As to the second contention, that we should allow the missing notice and undertaking in this case to be supplied, we can only say that the filing in this court of a transcript containing a notice, undertaking, and final judgment is jurisdictional, and we have no authority to require such trascript to be sent up after the time limited by law for so doing has expired. The statute makes the filing of such transcripts a duty incumbent upon the appellant, and does not devolve it upon the clerk of the lower court. The fact that a custom of leaving the clerk to send up such transcripts has grown up in some counties in this State cannot change the low in this respect, nor permit us to assume jurisdiction after it has been lost. If we could do so in any case, we certainly would in this one, where the custom alluded to, taken in connection with the fact that defendant no doubt believed that the clerk had sent up the papers necessary to perfect the appeal, makes a case of hardship upon him which we would gladly relieve, if we could do so without a positive violation of the
The rehearing is denied.
Affirmed: Rehearing Denied.