164 P. 586 | Or. | 1917
delivered the opinion of the court.
Within ten days from service of notice of the appeal the appellant must serve and file his undertaking on appeal with the clerk of the court. Within five days thereafter exceptions to the sufficiency of the sureties must be filed or be considered waived. The appeal is deemed effective from the expiration of the time allowed for exceptions to the sureties or the overruling of such objections: Section 550, L. O. L.
“Upon the appeal being perfected, the appellants shall within thirty days thereafter file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and thereafter the appellate court shall have jurisdiction of the cause, but not otherwise. * * ”
It will be noted that the appeal became perfect on August 2, 1911, the date when the exceptions to the sufficiency of the sureties were denied. In order to confer jurisdiction upon the Circuit Court, the transcript should have been filed within thirty days thereafter, as required by Section 554, L. O. L., or at least by September 1 of that year. With the lapse of this thirty days without any extension of time granted before its end passed all opportunity to confer jurisdiction upon
“When a judgment has been actually rendered or an order made by the court which is entitled to be entered of record, but, owing to the misprision of the clerk, has not been so entered, the court may order the entry to be made nunc pro tunc. But it is not the function of the court to create an order now, which ought to have been passed at a former time. In ordering an entry made nunc pro tunc, not one jot or tittle should be added to or taken from the original judgment.”
This court has very often held that a failure to file the transcript within the time provided by law or
The Circuit Court was utterly without jurisdiction to hear the cause on appeal. Its judgment is therefore void and .must be set aside and held for naught. The cause is remanded with directions to the Circuit Court to dismiss the appeal from the decree of the County Court.
Reversed and Remanded with Directions.