75 P. 714 | Or. | 1904
delivered the opinion.
This is a motion’ to dismiss an appeal. The defendant John Bolt, with the assent of the plaintiff, W. I. Dowell, executed to him a confession of judgment for the sum of $260 and costs, which, in vacation, was entered in the journal of the circuit court for Josephine County, and, an execution having been issued thereon, certain placer mining claims in that county belonging to Bolt were sold to Dowell. H. C. Austin thereafter commenced an action against Bolt in that court, and, having secured a judgment therein for the sum of $164.93, attorney’s fees, costs, and disbursements, and an order for the sale of these njining claims which had been attached in that action, moved to set aside the confession of judgment, on the ground that it did not state facts out of which the indebt
1. It is contended by plaintiff’s counsel that the service of an undertaking is a condition precedent to the exercise of the right of appeal, and, being jurisdictional, the motion to dismiss the appeal should be allowed." The statute prescribing the mode of taking and perfecting an appeal, so •far as deemed material, is as follows: “ 2. Within ten days from the giving of notice or service of -notice of the appeal, the appellant shall cause to be served on the'adverse party or his attorney an undertaking, as hereinafter provided, and within said ten days shall file the original of said undertaking, with proof of service indorsed thereon, with said clerk. Within five days after service of said undertaking, the adverse party or his attorney shall except to the sufficiency of the sureties in the undertaking, or he shall be deemed to have waived his right thereto.” * * “4. 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. When a party in good faith gives due notice
2. The giving of an undertaking, however, is one of the steps required to perfect an appeal; and, under the liberal provisions of the statute quoted, the appellate court may permit the performance of such act when it appears that the notice of appeal has been given in good faith, and that the failure to comply with the requirements of the statute is occasioned by mistake. The affidavit of defendant’s counsel does not state what constituted the inadvertence and oversight causing the omission to serve the undertaking, and it may have been either a mistake of law or of fact. As we view the statute, however, the character of the mistake is immaterial, so long as it in fact existed, and this is to be determined by the good or bad faith with which the notice of appeal is given or served: Skinner’s Will, 40 Or. 571 (62 Pac. 523). In the case at bar the appellant caused a bill of exceptions to be filed in this court and also prepared and filed a brief, thereby evidencing the good faith of the giving of due notice of appeal;
Motion Overruled.