Emery v. Brown, 127 P. 682

Emery v. Brown

127 P. 682 | Or. | 1912

Me. Justice McBride

delivered the opinion of the court.

. Section 554, L. O. L., requires the transcript on appeal to be filed with the clerk of this court within 30 days from the date the appeal is perfected. Subdivision 2 of this section reads as follows:

“If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned, and the effect thereof terminated, but the trial court or the judge thereof, or the Supreme Court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same; but such order shall be made within the time allowed to file the transcript, and shall not extend it beyond the term of the appellate court next following the appeal.”

1. The first objection urged by plaintiff, namely, that no notice was given of the applications for the various extensions of time, is not well taken. Previous to 1899 the statute expressly required such notice, but by the amendment adopted that year (Session Laws 1899, p. 227) this provision was stricken out; and we have since held that in the present state of the law such applications could be made ex parte. Johnson v. Iankovetz, 57 Or. 24 (102 Pac. 799: 110 Pac. 398: 29 L. R. A. [N.S.] 709).

*2662. The second objection is well taken. The court is expressly prohibited from extending the time for filing the transcript beyond the next term of the Supreme Court following the perfecting of the appeal. That term began on the first Monday in October, 1911, and expired at the opening of the succeeding term, which was upon the first Monday in March, 1912, and this last-mentioned term expired on the first Monday in October, 1912.

3, 4. The filing of a transcript within the time allowed by law or within some legal extension thereof is jurisdictional, and the fact alleged by defendant, that these extensions were for the accommodation of plaintiff’s attorneys and with their knowledge and acquiescence, cannot alter the legal status of the appeal, as consent of the parties cannot confer jurisdiction. Kelley v. Pike, 17 Or. 330 (20 Pac. 685); McCarty v. Wintler, 17 Or. 391 (21 Pac. 195); Connor v. Clark, 30 Or. 382 (48 Pac. 364).

The appeal will be dismissed. Dismissed.