42 P. 617 | Or. | 1895
Opinion by
The undertaking having been given and the appeal allowed, the transcript was filed with the clerk of the circuit court on the first day of the term of said court next following the allowance of the appeal, thereby transferring the cause to and conferring jurisdiction upon the circuit court, unless the plaintiffs’ exception to the sufficiency of the surety rendered the filing at that time premature. In an appeal taken to this court from a judgment or decree rendered in the circuit court, the adverse party is allowed five days after the filing of the undertaking to except to the sufficiency of the sureties therein, and if no exception be taken within that time, his right to except thereto shall be deemed waived; and 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: Hill’s Code, § 537. But the statute relating to appeals from judgments given in a justice’s court does not contain this provision. It provides, however, for the manner of obtaining the justification of sureties in an undertaking on appeal, but does not prescribe the time within which exceptions may be taken by the adverse 'party to their sufficiency; and, in the absence of such regulation, a reasonable time would doubtless be granted for that purpose, unless the transcript in the mean time had been filed with the clerk of the circuit court. The appeal being perfected by the filing of the transcript, the cause no longer remains in the justice’s court, and it would be useless to file in that court exceptions to