18 Or. 335 | Or. | 1890
Tbe undertaking on appeal to tbe circuit court from the justice’s court was executed in accordance with section 2182, chapter 13, Code, which provides that an undertaking for stay of proceedings in such a case must be in such an amount as may be deemed sufficient to compensate the plaintiff for the use or profits of the claim during the pendency of the appeal, and for costs and disbursements of the action; and, we think, was sufficient not only as a stay, but for the purposes of an appeal A further clause in the undertaking that the appellant would pay all costs and disbursements that might be awarded against him on the appeal would not have augmented the obligation it already imposed. The amount of the undertaking, as determined by the justice, must be deemed sufficient to cover the costs and disbursements of the action, as well as to compensate the plaintiff for the use or profits of the claim during the pendency of the appeal, which would necessarily include all costs and disbursements that might be awarded against the appellant on the appeal,” The law does not require a vain thing. Counsel for respondents contend, however, that the terms “costs and disbursements of the action, ’’ as used in said § 2182 of the Code, only include the costs and disbursements of the trial in the justice’s court. If the legislature had so intended it would have said that, or have used language which would have conveyed that meaning, but when it requires, as a condition of an appeal to another court where the action will be tried anew, that the appellant give an undertaking for costs and disbursements of the action, it must certainly mean the costs and disbursements which will accrue in the trial of the action, as well as those which have already accrued.
An appeal and new trial in such case is only a continuance of the trial of the same action. Besides, the motion to dismiss the appeal did not specify the grounds for its dismissal with such certainty as would justify the court in entertaining it. "Where counsel attempt to take advantage of a mere technicality they should be held to the observance of technical rules. In a motion of that character
The judgment appealed from will therefore be reversed and the case remanded to the circuit court, with directions to try the issues between the parties as found by the pleadings therein.