67 P.2d 774 | Or. | 1937
In Banc. On September 4, 1936, a verdict and judgment was rendered in the circuit court in favor of defendant and against plaintiff. On November 2, 1936, plaintiff served and filed notice of appeal to this court. *406
The respondent moves to dismiss the appeal herein for the reason that this court is wholly without jurisdiction to entertain it, because "the transcript on appeal was not filed with the clerk of the above-entitled court within 30 days following the perfection of the appeal herein", November 17, 1936, or within any enlargement of time for such purpose by order "made within the time allowed to file transcripts", as required by section 7-507, Oregon Code 1930.
On November 12, 1936, plaintiff served and filed an undertaking on appeal. There being no objections to the sureties on the undertaking, the appeal became perfected on November 17. The order herein attempting to enlarge the time for filing the transcript was made on January 20, 1937, "as and of the date of October 29th, 1936". This latter date was three days prior to the service and filing of notice of appeal herein.
In Schultz v. Walrad,
The actual date of making the enlargement order, to wit, January 20, 1937, was 33 days after the expiration *407 of "the time allowed for filing transcripts": § 7-507, Oregon Code 1930.
The attempted nunc pro tunc order for enlargement of time, January 20, 1937, does not show or attempt to show that any order was made on October 29, 1936, or at any date prior to the date of the nunc pro tunc order, or that any request was made for such order or extension of time.
In Hay v. Yokell,
Appellant states that respondent actually had notice of appellant's appeal within 60 days from the judgment appealed from. In what manner respondent had notice is not disclosed. There is no claim that notice of appeal was served or filed, except as stated.
The transcript on appeal not having been filed within the time provided by law, or within 30 days from and after the 17th day of November, 1936, or within any enlargement of time for such purpose by order "made within the time allowed to file transcripts" as required by section 7-507, Oregon Code 1930, this court is without jurisdiction to try the case and the appeal must be dismissed. It is so ordered. *409