State v. Keeney, 159 P. 1165

State v. Keeney

159 P. 1165 | Or. | 1916

Me. Justice McBeide

delivered the opinion of the court.

1. If the appeal was perfected by the service and filing of the first notice, this motion must be allowed, and *481such we believe to be the law. In. civil cases an appeal to this court is perfected by serving the notice of appeal and filing the necessary undertaking for costs. In criminal cases, there being no undertaking for costs required, the appeal becomes perfected by serving and filing with the clerk a notice of appeal: Sections 1610, .1611, L. O. L. Section 1621, L. O. L., as amended in 1913, provides:

“Upon appeal being taken, the clerk of the court where the notice of appeal is filed must within 30 days thereafter, or such further time as such court, or the judge thereof may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment-roll to the clerk of the Supreme Court”: Laws 1913, p. 496.

Under this section we have frequently held that, unless the failure to file the transcript within the time prescribed by law was shown to be due to the negligence of the clerk, the appeal would be dismissed: State v. Williams, 55 Or. 143 (105 Pac. 716); State v. Dickerson, 55 Or. 390 (106 Pac. 790); State v. Douglas, 56 Or. 20 (107 Pac. 957); State v. Webb, 59 Or. 235 (117 Pac. 272).

2. The defendant, having perfected his first appeal by serving and filing the notice required by the statute, thereby exhausted his right of appeal: Schmeer v. Schmeer, 16 Or. 243 (17 Pac. 864); Columbia City Land Co. v. Ruhl, 70 Or. 246 (134 Pac. 1035, 141 Pac. 208); Brill v. Meek, 20 Mo. 358. The right of appeal having been exhausted, it was not within the power of the parties to stipulate for a new notice and a new appeal, even if they had done so. A transcript containing the first notice of appeal is not here, and we are not now called upon to pass upon the question as to whether there was a sufficient excuse for defend*482ant’s failure to file his transcript pursuant to that notice.

It sufficiently appears that the present appeal was taken after the right to take it had been exhausted, and it is therefore dismissed. Dismissed.