105 P. 716 | Or. | 1909
Opinion by
This is a motion to dismiss an appeal. The defendant, D. H. Williams, having been convicted of the crime of
“Upon the appeal being taken, the clerk of the court where the notice of appeal is filed must, within five 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.” Section 1479, B. & C. Comp.
As the notice of appeal was served October 1, 1909, and the transcript filed in this court on the 20th day of that month, the copies of the pleadings, orders, and judgment, and the original bill of exceptions, were not transmitted “within five days” as required by law.
The defendant’s counsel, resisting the motion and explaining the cause of the delay, filed an affidavit stating, in effect, that in proper time he prepared a bill of exceptions, which was duly served, settled, and filed, whereupon it was agreed by counsel for the respective parties that the original bill of exceptions might be sent up; that in conformity therewith, deponent prepared and signed a stipulation, which, for many months, remained with the clerk of the trial court, to be subscribed by the district attorney, and the clerk was relied upon to inform affiant when the bill of exceptions was ready to be transmitted;
The showing made by the affidavit does not, in our opinion, excuse the defendant from neglect in failing to examine the papers mentioned, and for that reason the appeal is dismissed. Dismissed.