Burchell v. Averill Machinery Co.

105 P. 403 | Or. | 1909

Mr. Justice Slater

delivered the opinion of the court.

1. The first reason advanced in support of the motion, which is that the transcript or abstract was not filed within the time prescribed by law, as well as the third, fourth, and fifth, which are to the effect that the abstract as filed does not contain a copy of the judgment appealed from, of the notice of appeal, and proof of service thereof, or of the undertaking on appeal, is fatal to the jurisdiction of this court over this cause.

2. Defendant’s counsel contends that plaintiff had five days after the filing of the undertaking in which to except to the sufficiency of the sureties, and that, as no exceptions were taken, the appeal became perfected on May 18th. If this is correct, the filing of the abstract on June 15th was within 30 days after the appeal was perfected, and therefore within the limitation of the statute. But • this contention is in direct contravention of the express declaration of the statute' to' the effect that the time in which the adverse party or his attorney is required to except to the sufficiency of the sureties is “within five days after service of said undertaking” and therefore it is not after the filing thereof. From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof if excepted to, the appeal shall be deemed perfected. Section 549, B. & C. Comp., subds. 2, 4. The undertaking on appeal in this case was served on February 2, 1909, and, as no exception was taken to the sureties, the appeal was perfected on the 7th of that month. To confer jurisdiction of the cause upon this court, defendant, therefore, was under the necessity of filing the transcript or abstract of the cause with the clerk of this court on or before March 21st. Section 553, B. & C. Comp., Boothe v. Scriber, 48 Or. 561, 568 (87 Pac. 887: 90 Pac. 1002). The abstract was not filed until June 15th, which is not within the limitation of the statute, and therefore this court is without jurisdiction of the cause: Robinson v. Robinson Cheese Co., 50 Or. 453 (93 Pac. 253.)

3. The remaining objections going to the sufficiency of the abstract as filed are equally fatal. The printed abstract is not before us, as it has not been forwarded from Pendleton where it is on file, but it is admitted by defendant’s counsel that the same does not contain a copy of the judgment appealed from, of the notice of appeal and proof of service, or of the undertaking on appeal. When a party desiring to appeal depends upon the filing of an abstract in lieu of a transcript to confer jurisdiction of the cause, it is essential that it, as well as a transcript, contain a copy of the judgment appealed from, of the notice of appeal and proof of service thereof, and of the undertaking on appeal, for such is the express requirement of the statute. Section 553, B. & C. Comp. The omission from the abstract of any of these essential statutory requirements' cannot afterwards be supplied by amendment because they are jurisdictional.

4. Defects or errors in a transcript or abstract, when not of jurisdictional character, are, as a general rule, amendable, in the discretion of the court, when laches is not imputable to the applicant: 3 Cyc. 140; Skinner v. Lewis, 40 Or. 571 (62 Pac. 523: 67 Pac. 951) ; Fleischner v. Bank of McMinnville, 36 Or. 553 (54 Pac. 884: 60 Pac. 603: 61 Pac. 345.)

The motion to dismiss is therefore allowed.

Dismissed.