87 P. 887 | Or. | 1906
Lead Opinion
delivered the opinion of the court.
It follows from these views that the judgment of the court below must be reversed, and the cause remanded for a' new trial. Béversed.
Rehearing
On Eehearing.
For appellant there was an oral argument by Mr. Leroy Lomax.
■ For respondent there was an oral argument by Mr. James Davis Slater.
A reargument and re-examination of the question, as to whether the transcript in this case was filed within the time provided by law, has confirmed us in the conclusion heretofore reached. Upon an appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court his trascript, etc.': B. & C. Comp. § 553; From the expiration of the time allowed to except to the sufficiency of the sureties in the undertaking, or from the justification thereof, if excepted to, the appeal shall be deemed perfected : § 549. No exceptions were filed to the sufficiency of the sureties in this case, but the time in which to file such exceptions did not expire until the last moment of the 29th of August, and, therefore, the appeal was not perfected ;so that the appellant could have filed his transcript until the first moment of the following day or the 30th. Excluding the 30th, the date on which the appeal was perfected, the time in which to file the transcript expired on the 29th of September, and as it was filed on that date, it was within time. Former opinion adhered to.
Reversed : Affirmed.