109 P. 1092 | Or. | 1910
Lead Opinion
On Motion to Dismiss.
When a party in good faith gives a notice of appeal from a judgment or decree and thereafter omits, through mistake, to file an undertaking, the appellate court may permit the performance of such act. Section 549, subd. 4, B. & C. Comp. An undertaking was given in this cause, thereby evidencing good faith, and such being the case, the motion to dismiss is denied, and leave is hereby granted to file a new undertaking within thirty days.
Denied.
Opinion on the Merits
Decided July 19, 1910.
On the Merits.
Opinion by
The answer permitted to be filed admits that when this suit was instituted Milner and Beardsley claimed to have some interest in the land, but all the other averments of the complaint are denied. For a further defense the answer states the facts substantially set forth in the affidavits to which reference has been made.
An examination of the primary pleading, a copy of which is hereinbefore set forth, will show that it does not allege that the defendants’ claim to the land is hostile to the plaintiff’s right thereto, nor is any fact stated from which an antagonistic interest can be inferred. It is therefore ineffectual in this particular, and attention is called thereto, in view of the conclusion we have reached, so that the defect may be remedied by an amendment.
It will be noted that this suit was instituted August 13, 1907; that 16 days thereafter Beardsley sold and conveyed to the corporation the timber and the right to remove it; that the decree was given April 20, 1908; that Milner sold and conveyed to Noble all his interest in the land July 24, 1908, and that neither of these parties had any knowledge of the commencement of the suit or the giving of the decree until August, 1908. The Eastern Investment Company, Limited, a corporation, and Noble sought to be substituted for Milner and Beardsley, but the order of the court brought up for review does not go to that extent, only permitting the corporation and Noble to become parties defendant, and the answer of all the defendants to be filed.