Watts v. State Spiritualists' Ass'n

107 P. 695 | Or. | 1910

Mr. Justice McBride

delivered the opinion of the court.

1. The statute in force when the written notice of appeal was served is as follows:

“Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order or decree, or some specified part thereof.” Laws 1901, p. 77.

In Anderson v. Phegley, 54 Or. 102 (102 Pac. 603), we had occasion to construe the statute above quoted, and to call attention to the fact that its provisions had very much relaxed the rule, theretofore prevailing, in regard to the description of the judgment required in a notice of appeal. We think that the notice in the case at bar is entirely within the rule announced in that case, and that it is sufficient.

2. The fact that defendant failed to perfect its appeal pursuant to the oral notice given it at the trial could not prejudice its right to take a new appeal within the time allowed by law. Where an appeal has been taken and perfected, the defendant cannot abandon it and take a new appeal, but, where the first appeal has not been perfected, a second appeal may be taken. Nestucca Wagon Road Co. v. Landingham, 24 Or. 439 (33 Pac. 983). An appeal is not perfected until the undertaking required by the statute has been filed and the time allowed by law within which to except to the sufficiency of the sureties has expired. Laws 1901, p. 77.

In the case at bar no undertaking was ever filed pursuant to the first notice. Therefore no appeal was ever taken by virtue of it.

The judgment of the lower court is reversed and the cause remanded.