113 P. 852 | Or. | 1911
Lead Opinion
delivered the opinion of the court.
“The time within which an act it to be done as provided in this Code shall be computed by excluding the first day and. including the last, unless the last day fall upon Sunday, Christmas or other nonjudicial day, in which case the last day shall also be excluded.”
It follows that filing the transcript after the time thus limited by the circuit court was too late to give this court jurisdiction. The result is that the appeal is dismissed. Appeal Dismissed.
Opinion on the Merits
On the Merits.
[122 Pac. 757.]
Statement by
This is an action to recover damages for the alleged unlawful use and occupation of certain premises held by plaintiff under a lease and subsequently sublet by him to defendants. The orignal complaint is as follows:
“That at all times herein mentioned the above-named defendant the Blue Point Oyster Company was, ever since has been, and now is, a corporation duly incorporated, existing and doing business at Portland, Oregon, under and by virtue of the laws of the State of Oregon. That heretofore, and from and including the 1st day of September, 1908, to and including the 25th day of December, 1908, being a period of 116 days, the plaintiff was lessee from the owner and thereby entitled to the possession of the following described premises, to-wit,*542 the west half of those certain store premises at number 364 Morrison Street, in Portland, Oregon. That during the whole of said period, in paragraph two mentioned, the above defendants willfully, maliciously, and without right, and against the consent of the plaintiff, occupied the whole of the premises in paragraph two described, and deprived the plaintiff during the whole of said period of the use of the said premises to the damage of the plaintiff in the sum of $380.”
There was an additional cause of action set up but it was waived on the trial. The defendants answered, denying all the allegations of the complaint except the incorporation of defendant the Blue Point Oyster Company, and for a further and separate answer alleged' the following:
“That at all times mentioned in plaintiff’s complaint, and for a long time prior thereto, plaintiff was and has been in possession of the premises therein described, under and pursuant to a certain agreement of leasing duly made and entered into by and between plaintiff and defendant on or about the — day of May, 1908, and that at all of said times mentioned in plaintiff’s complaint defendants were tenants of the plaintiff under and pursuant to said agreement, which acts are the same of which plaintiff complains in said complaint.”
Plaintiff answered, denying the new matter in the defendants’ answer.
When the cause came on for trial, plaintiff asked leave to amend his complaint so as to extend the time in which he claimed that defendants unlawfully occupied the premises to February 10th instead of December 25th, as alleged in the original complaint, which amendment was permitted by the court, over the objection of defendants. Later in the trial the court permitted plaintiff to amend his reply so as to plead a judgment obtained by him against defendants in an action of forcible entry and detainer, in relation to the same premises, to which rul
For appellants there was a brief over the names of Mr. Claude Strahan and Mr. Waldemar Seton, with an oral argument by Mr. Strahan.
For respondent there was a brief and an oral argument by Mr. Julius Silverstone.
delivered the opinion of the court.
Appeals in matters of this kind are an abuse of the privilege of appeal. The defendants claimed that the rent they should have paid, and did not pay, amounted to about $213. The court found against them for $80 more than this, and we have a large transcript and extensive briefs over a net difference between the parties of $80.
Defendants had a fair trial and suffered injury to no substantial right, and the judgment is affirmed.
Affirmed : Rehearing Denied.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.
Since the petition for rehearing was filed in this cause, challenging the correctness of the order dismissing the appeal, it has for the first time come to the knowledge of the court by the statement of the clerk that the transcript herein reached his possession at least by October 2, 1910, which day being Sunday, according to his custom he marked it filed as of the following day. This being true, the appellant was in time with his transcript. The former order dismissing the appeal is set aside and the motion to dismiss the appeal is overruled.
Former Order Dismissing Appeal Set Aside: Motion to Dismiss Appeal Denied.
Argued March 27, decided April 9, rehearing denied May 14, 1912.