Dolph v. Nickum, 2 Or. 202

Dolph v. Nickum

2 Or. 202 | Or. | 1867

By the Court.

Respondent moved to dismiss the appeal for want of proper service of notice in this, that the return does not show that there was no person in said office with whom the copy might have been ieft.' Upon cross motion of .appellants, leave was granted to amend the return in that nespect to conform to the facts. The notice of appeal and certificate contained the following statement of errors relied xupon to reverse the judgment:

“ 1st. Because it is contrary to law.

“ 2d. Because it is contrary to evidence.

“ 3d. Because it is based upon evidence improperly admitted and considered by the court; duly excepted to by appellants.”

Appellants asked leave to amend the statement as to first and second heads; which application was denied.

*203The Code, Section 527, page 280, provides that the notice of appeal “ shall contain the certificate of an attorney of the court to the effect that he has examined the judgment or decree and that the same is substantially erroneous, and m what particulars.” Section 53d provides that the appellate court may reverse or modify “ in the respect mentioned in the notice, and not otherwise.” Section 531 provides that the notice of appeal is made a part of the transcript. Held, that the notice and certificate being a part of the transcript are not amendable in this court. That as in a pleading, so in the notice, parties are supposed to set forth in full effect the statement of errors; that the certificate should contain a particular statement of the error alleged, and in what respect it is erroneous. It should contain a reference at least to the point in law to which error applies, and to the general points of evidence, so that the other party may not go wide of matters in controversy. There is no such particular averments in either of the first two points in certificate and the court will not examine this case in those respects; and the attention will only be given to those matters which may properly come under the third assignment of error.