136 P. 7 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
This is a motion to dismiss an appeal for various assigned reasons; the material ones alone being herein considered. On October 6, 1913, appellant filed with the clerk of this court a collection of documents bearing the legend, “Original files on appeal,” consisting of the original complaint, amended complaint, summons, demurrer, answer to amended complaint, reply, verdict of jury, judgment, cost bill, notice of appeal, undertaking and order of the Circuit Court extending the time of filing the transcript of record. Attached thereto is a sufficient certification and authentication by the county clerk.
Construing the two enactments together, and keeping in mind the evident intent of the law body to curtail the record on appeal and render less burdensome the costs incident thereto, we are free to declare that a party appellant has complied with the statutes when he has caused the clerk, or other proper officer of the trial court, to send the original pleadings and the original bill of exceptions to the clerk of this court. It would be a work of supererogation to require the appellant to transmit to this court both the original pleadings and copies thereof. However, the term “pleading ’ ’ is not sufficiently elastic to embrace the judgment or decree appealed from, the notice of appeal and proof of service thereof, and the undertaking on appeal; and for that account copies of these documents, rather than the originals, must be supplied agreeably to the provision of Section 1, of Chapter 320, supra.
Counsel for respondent urges the want of jurisdiction on account of the omission of the documents hereinbefore specified, while counsel for appellant insists this court has jurisdiction by reason of having in its custody all of the original documents, including those papers of which it is maintained copies should have been made. We think the failure of the clerk to include in the transcript copies of the judgment, notice of appeal and proof of service thereof, and undertaking on appeal, is not jurisdictional, in view of the fact that this court is in possession of the originals, and which fact distinguishes this case from the one of Burchell v. Averill Machinery Co., 55 Or. 113 (105 Pac. 403). In that case the judgment appealed from, notice of appeal and proof of service thereof, and the undertaking on appeal were not included in the abstract. This court held the omission of these essential requirements could not be supplied by amendment because they were jurisdictional. In this case no essential part of the record is omitted. The form of a part of that record is not as required by statute, and to dismiss an appeal for nonobservance of form when the substance is supplied would be carrying the rule beyond reason, and giving effect to form rather than substance. While vexatious appeals should be discouraged, yet the opportunity for litigants to have their
Respondent contends that this appeal should be dismissed for further reason that he was not apprised, by 10 days ’ notice, of the settling of the bill of exceptions. We are not aware that the statute or rules of court require any notice to be given when the bill of exceptions is to be presented to the trial judge for allowance. The record here shows the attorney for respondent was given several days’ notice, though falling short of 10 days. Good practice suggests that the bill of exceptions be settled at a time convenient to all concerned, yet not sufficiently remote as to render dim the remembrance of the facts adduced at the trial.
Other objections are interposed, but we deem them not fatal to this appeal.
The motion to dismiss will be denied, and appellant’s suggestion for a diminution of the record will be allowed, and the rule issued to supply copies of the record adverted to, with direction to return the originals thereof to the clerk of the trial court.
Motion to Dismiss Denied.
Motion to Supply Record Allowed.
Opinion on the Merits
On the Merits.
From Klamath: Henry L. Benson, Judge.
Department 2. Statement by Mr. Justice Eakin.
This is an action of ejectment to which there are three defenses set up: (1) An allegation of ownership in fee by the defendant; (2) that plaintiff’s cause of
Aeeirmed. Rehearing Denied.
For appellant there was a brief over the names of Mr. H. M. Manning and Mr. G. M. Oneill, with an oral argument by Mr. Manning,
For respondent there was a brief and an oral argument by Mr. William G. Hale.
delivered the opinion of the court.
The judgment is affirmed.
Affirmed. Rehearing Denied.