193 P. 439 | Or. | 1920
Lead Opinion
— This is a motion to dismiss an appeal. A decree was rendered against defendant Jacob Arenz on August 3, 1920, and on August 26th he served and filed a notice of appeal therefrom. On September 3, 1920, he applied to the Circuit Court for an extension of thirty days from the date of the
. Subdivision 2 of Section 550, Or. L., 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 ór his attorney shall except to the sufficiency of the sureties in the undertaking, or he shall be deemed to have waived his right thereto.”
Subdivision 4 of the same section is as follows:
“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. When a party in good faith gives due notice as hereinabove provided of an appeal from a judgment, order, or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just.”
We have frequently held that subdivision 2 of Section 550 is mandatory, and that failure to comply therewith is fatal to the appeal unless excused by the court. Where the delay has been shown to have been the result of a mistake either of law or fact, such omissions have usually been excused. Where the ap
Subdivision 2, Section 550, Or. L., quoted above, if it stood alone, would be mandatory and conclusive against defendant’s right of appeal, but the effect of subdivision 4 is to take away its mandatory and jurisdictional character, and to retain in the court jurisdiction of the appeal, provided the party appealing complies later, with some requirement omitted by mistake. In order to take advantage of the exception therein contained there must have existed at the time of the application a mistake in not filing the undertaking in time, and the statutory time must have elapsed. Such was not the condition when the application for further time was made. The mistake that the appellant made was in supposing that the court could extend the time for filing the undertaking, in advance of any default. The law does not permit an indiscriminate extension of time to file an undertaking, but, in its solicitude for the privilege of every litigant to have his case heard upon appeal, it allows him to correct such error as may arise from forgetfulness or even misconception of the procedure necessary to preserve his legal rights, if it appears that he has in good faith served and filed his notice of
It may be added that, having now declared the law, thereby removing any misconception which may have existed in the minds of members of the bar as to its proper interpretation, we shall not be inclined to view defaults of like character, arising in appeals hereafter taken, with any great degree of leniency.
Motion to Dismiss Denied.
Opinion on the Merits
On the Merits.
(206 Pac. 299.)
Affirmed.
For appellant there was a brief ov.er the name of Messrs. Cake S Cake, with an oral argument by Mr. L. A. Liljeqvist.
For respondent H. F. Bushong there was a brief over the name of Messrs. Johnstone, Gay & Hodges, with oral arguments by Mr. Hamilton Johnstone and Mr. C. M. Hodges.
For respondents J. A. Miller and E. H. Bauer there was a brief over the names of Mr. Gus C. Moser and Mr. Roy K. Terry.
— The defendant Jacob Arenz and the defendant H. F. Bushong, as trustee in bankruptcy of the Arenz Construction Company, claimed the same debt from plaintiffs; the latter filed a complaint in the nature of a bill of interpleader herein, and paid the amount of the debt into court. The Circuit Court entered a decree in favor of defendant Bushong, and defendant Jacob Arenz appeals from that decree. No disputed question of law is presented by the appeal.
Defendant Jacob Arenz was named as payee in a non-negotiable note given by plaintiffs for $6,000, dated October 23, 1918, and due May 1, 1919. The note provided for interest at the rate of 8 per cent per annum from May 1, 1918; $270 had been credited upon the principal of the note.
After hearing the evidence, the court found in substance that the Arenz Construction Company was a corporation engaged in the business of general contracting; that Jacob Arenz was the president of the corporation, and his son Theodore Arenz, the treasurer and manager thereof, and another son, George C. Arenz, was secretary of the corporation; that Theodore Arenz was authorized by a resolution of the board of directors to do everything pertaining to the general business of the corporation, and that he did it; that on July 25, 1917, plaintiffs entered into a contract with the City of Astoria for the improvement of Exchange Street therein; that prior to the consummation of said contract, the Arenz Construction
While much evidence, oral and written, was submitted upon trial, it admits of no conclusions other than those reached by the trial court, and no purpose would be served by reviewing that evidence here.
The decree of the Circuit Court is affirmed.
Affirmed,