179 P. 904 | Or. | 1919
Lead Opinion
Judgment was entered against defendant on December 5, 1918. Notice of appeal was served on January 20,1919. Before the notice was served, and on January 14, 1919, the defendant applied for, and secured from the Circuit Court, an order extending the time within which to file the transcript on appeal until March 15, 1919. No other extension was granted and plaintiff moves to dismiss the appeal.
-“An appeal from the Circuit Court to this-court, under our system .of practice, is a new proceeding.”
It would seem that at least the first step required in such proceeding, which consists in the service and filing of a notice, should be taken, before the Circuit Court has authority to authorize an extension of time to file a transcript.
The motion to dismiss is sustained.
Appeal Dismissed.
Rehearing
Denied May 20, 1919.
Petition for Rehearing.
(179 Pac. 991.)
On petition for a rehearing on motion to dismiss an appeal. Appeal Dismissed. Rehearing Denied.
Mr. Milo C. King, for the petition.
Mr. Frank Schlegel, contra.
This is a petition for rehearing upon the order made dismissing defendant’s appeal: Ante, p. 315 (179 Pac. 904).
The affidavit does not show the facts necessary to constitute service by mail. Section 540, L. O. L., reads as follows:
*318 “Service by mail may be made, when the person for whom the service is made, and the person on whom it is to be made, reside in different plhces, between which there is a communication by mail, adding one day to the time of service for every fifty miles of distance between the place of deposit and the place of address.”
■ In Fish v. Hunt, 33 Or. 424 (54 Pac. 660), the court used the following language:
“It was also insisted that the constable could have made a good and sufficient return of service by mail, but the contention is not tenable. We would infer from the affidavit that the plaintiff’s residence was at Wagner, while that of defendants was at Winlock,— different places within Grant County, between which there was communication by mail. But .the deposit was made in the postoffice at Wagner, addressed to the respondent at Wagner. The statute provides (Hill’s .Ann. Laws, 528, 529) that ‘service by mail may be made, when the person for whom the service is made, and the person on whom it is to be made, reside in different places, between which there is a communication by mail, adding one day to the time of service for every fifty miles of distance between the place of deposit and the place of address.’ ‘In case of service by mail, the copy must be deposited in the postoffice, addressed to the person on whom it is to be served, át his place of residence, and the postage paid. The service shall be deemed to be made on the first day after the deposit in the postoffice that the mail leaves the place of deposit for the place of the address, and not otherwise.’ These sections provide for substituted service in derogation of the common law, and a strict and literal compliance with them is required to confer jurisdiction on the appellate tribunal: 2 Enc. Pl. & Prac. 226. Such being the case, the deposit, to have been effectual as contemplated thereby, should have been made in the postoffice at Winlock, the appellant’s place of residence, they being the parties for whom service was attempted; and it was insufficient to make the deposit at Wagner, the place of residence of the party on whom the service was intended to have*319 been made: Reed v. Allison, 61 Cal. 461. These considerations affirm the judgment of the court below, and it is so ordered.”
From this it will be seen that there can be no service by mail unless the parties reside in different places, and there can be no such service where both the parties reside in the same place and have the same postoffice address. The affidavit fails to show where the notice was mailed or the residence of the appellant or his attorney, and is, therefore, defective.
As to whether the service of a second notice and undertaking, and the filing of a transcript here under that, should be deemed an abandonment of the appeal originally attempted, we express no opinion.
The petition for rehearing is denied.
Appeal Dismissed. Rehearing Denied.