Kelley v. Pike

| Or. | Feb 4, 1889

The Court.

The appeal herein was taken prior to the commencement of the present term of this court, but the transcript was not filed by the second day thereof, as required by the code. The neglect was in consequence of the sickness and death of the appellant’s attorney, who took the appeal. The appellant’s counsel now move for an order allowing the transcript to be filed nunc fro tunc. The grounds upon which the motion is made are sufficient to excuse the neglect, and the court would very readily grant the motion if empowered to do so.

The appellant’s counsel suggest that section 102 of the code, which provides that the court may allow an answer or reply to be made or other act to be done after the time limited by the code, or by an order enlarge such time, authorizes the court to permit any act to be done after the time has elapsed in which it is required to have been done.

• For the purposes of this case, we would be glád to adopt the view suggested, but an appeal from the circuit court to this court, under our system of practice, is a new proceeding, and the requisite steps must be taken to give the appellate court jurisdiction, as may be seen by reference to other provisions of the code. Section 541 provides that “upon the appeal being perfected, the appellant must by the second day of the next regular term of the appellate court thereafter file with the clerk of such court the transcript of the cause, as provided in this section, and thereafter the appellate court has jurisdiction of the cause, and not otherwise.”

Subdivision 3 of said section provides that “if the transcript is not filed with the appellate court within the time provided, the appeal is to be deemed abandoned, and the effect thereof terminates; but the court or judge thereof may, upon notice to the respondent, and 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.”

In view of the latter provision, this court would hardly undertake to hold that it had authority after the expiration of the time there specified to enlarge the time for filing the transcript. A court cannot create jurisdiction for itself; it must be conferred by law, and the mode pointed out whereby it may be acquired must be substantially complied with, in order to obtain it. We would have as much right to enlarge the time for the service of the notice of appeal as we would to enlarge the time for filing the transcript after the time specified, in the code had expired. It would be extrajudicial in either case. A party desiring to have an adjudication of a circuit court reviewed in this court must by the second day of the next regular term thereafter file with the clerk of this court a transcript of the cause, otherwise his appeal will he deemed abandoned and the effect terminated. The court or judge thereof, however, may, upon notice to the respondent, and upon such terms as may be just, by order enlarge the time for filing the same, as before mentioned.

Under no other circumstances can the transcript be filed in this court so as to give it jurisdiction of the cause. And in our opinion such order should be obtained from the court, or judge thereof, in which the decision appealed from was rendered, although this court has held that it had authority to make such order, and will probably adhere to that ruling when a case is properly presented. It is important for the -members of the bar to bear in mind that an order of that kind cannot be made except upon notice to the respondent.

The motion must be denied.