192 P. 656 | Or. | 1920
Lead Opinion
Plaintiffs now move to dismiss the appeal for the reason that such justification was not taken before the court or the clerk thereof. Subdivision 2 of Section 550, Oregon Laws, provides:
“Within ten days from the giving of notice or service of notice of the appeal, the appellant shall cause to be served on the adverse party or his attorney an undertaking as hereinafter provided, and within said ten days shall file the original of said undertaking, with proof of service indorsed thereon, with said clerk. Within five days after the service of said undertaking, the adverse party or his attorney shall except to the sufficiency of the sureties in the undertaking, or hé shall be deemed to have waived his. right thereto. ’ ’
Subdivision 3 of said section provides:
“The qualifications of sureties in the undertaking on appeal shall be the same as in bail on arrest, and, if excepted to, they shall justify in like manner.”
Section 270, Oregon Laws, provides:
“For the purpose of justification, each of the bail shall attend before the judge or clerk, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or clerk in his discretion may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff. ’ ’
It nowhere appears that the surety appeared before the judge or clerk for the purposes of justification. On the contrary, it appears that he did not so appear, and that his examination was upon written interrogatories. The personal presence of the surety before one of the officers designated is ^clearly re
The appeal will be dismissed, and the judgment affirmed. Appeal Dismissed. Affirmed.
Modified December 14, 1920.
Rehearing
Petition for Rehearing.
(192 Pac. 1119.)
On petition for rehearing.
Former Opinion Modified.
Mr. N. G. Wallace; Mr. M. E. Brink and Mr. Donald M. Graham, for the petition.
Mr. Willard H. Wirtz and Mr. Jay E. Upton, contra.
A petition for rehearing has been filed in this case, accompanied by an affidavit claiming that there was an oral stipulation between the respective attorneys that the justification of the surety might be taken by interrogatories. The affidavit states that this agreement is now denied by the attorney for plaintiff.
We think that the circumstances shown are such that he should be permitted to do this, and our original opinion is modified, so as to permit counsel to serve upon plaintiff’s counsel a copy of the undertaking proffered by him, or other sufficient undertaking, which, if approved by the court upon objection, or if no objections are made within the statutory time, may be sent up to this court and filed; this to ■be done within thirty days from the time this opinion is handed down. Former Opinion Modified.