8 Or. 529 | Or. | 1880
By the Court,
A motion has been made in this case to dismiss the appeal upon the grounds: 1. That the notice of appeal does not sufficiently describe the decree appealed from; 2. That the undertaking for appeal, as shown by the transcript, was not filed within ten days after service of the notice of appeal, but previous to such service, and consequently there, is no undertaking for this appeal. In opposition to this motion, appellant has filed his cross-motion, asking leave to file said undertaking, or file a new one.
In our opinion the notice of appeal is sufficient in the particular objected to by the respondents. The date and character of the decree, and the parties in whose favor rendered, are all set forth in the notice, and fully identify it. (Lewis v. Lewis, 4 Or. 210.)
The objections to the undertaking are, however, well taken. The service of the notice must precede the filing of the undertaking for an appeal. (Dooling v. Moore, 19 Cal. 81; Buckholder v. Byers, 10 Id. 481.) Nor will refiling of the undertaking now, if that were possible, aid this appeal. But as it satisfactorily appears that appellant has given his notice of appeal in good faith, and that he has failed, through mistake, to file an undertaking within the time allowed by law, the motion to dismiss will be denied, and the appellant has leave to file a sufficient undertaking for appeal.
