Sherwood v. State Industrial Accident Commission

103 P.2d 714 | Or. | 1940

The respondent, State Industrial Accident Commission, moves that the appeal herein be dismissed on the ground that the transcript on appeal was not filed in the supreme court within the time provided by law.

The notice of appeal was served upon the attorney general, attorney for the defendant, on December 29, 1939, by depositing a copy thereof in the United States post office in Portland, Oregon, addressed to the attorney general of the state of Oregon. Thereafter, on January 5, 1940, in the same manner an undertaking on appeal was served upon the attorney general, who filed no exception to the sufficiency of the sureties.

Section 7-404, Oregon Code 1930, as amended by chapter 238, Oregon Laws 1933, provides as follows:

"In case of service by mail, the copy may be deposited in any post office, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid. The service shall be deemed to be made on the day of deposit in the post office, and not otherwise."

The date of service of the undertaking on appeal is the date on which it was mailed, to wit, January 5, 1940; and the five days within which the respondent might file exception to the sureties expired on January 10 of that year: Boothe v. Scriber,48 Or. 561, 87 P. 887, 90 P. 1002. Upon the expiration of the time to except to the sureties, the appeal was perfected. The transcript on appeal should therefore have been filed within 30 days thereafter, and in computing 30 days January 11 should be excluded: United States National Bank v. Shefler, 77 Or. 579,143 P. 51, 152 P. 234; Sevich v. State Industrial AccidentCommission, 142 Or. 563, 20 P.2d 1085. The 30 days expired on February 10, 1940. The transcript on appeal was not filed, however, until February 13, 1940. The appeal is therefore dismissed.

BEAN, J., not participating in this decision.