IN BANC.
This is a motion to dismiss the appeal herein and affirm the judgment. The motion presents a rather complicated situation, requiring a statement of the matter as it appears of record and in the affidavits filed. It appears from the affidavit accompanying *Page 438 the motion, and this portion of the affidavit is not denied, that on the first day of November, 1924, plaintiffs had a verdict on a trial by jury in the Circuit Court of Union County for the sum of $26,000, and that on that date, upon motion of the attorneys for plaintiffs, judgment was duly rendered and entered against defendant for the sum of $26,000, which judgment is as follows:
"Now, on this first day of November, 1924, the above-entitled matter coming duly on to be heard upon motion of plaintiffs, appearing by their attorneys, Nichols, Hallock Donald, for a judgment against defendant upon the verdict of the jury returned in the above entitled cause, and it appearing to the court that this is an action at law wherein plaintiffs seek to recover from defendant a sum of money on account of services performed by plaintiffs for defendant in connection with the construction of a certain highway in Baker County, Oregon, that issues having been joined under the pleadings in said cause, that a jury having been duly selected, empanelled and sworn on the 23rd day of October, 1924, that said cause having proceeded to trial before said jury, that testimony having been introduced on behalf of the respective parties to this cause, that counsel having argued said cause to said jury, that the court having instructed said jury on the law of the case, and that said cause having been fully submitted, said jury did on the first day of November, 1924, retire for its deliberations on said cause, whereupon and on said last named date the said jury did return to the above entitled court its verdict in words and figures as follows, to-wit: * *
"`We, the jury in the above entitled action, find for the plaintiffs in the sum of $26,000.00 (Twenty-six Thousand Dollars.)
"`M.W. HUFFMAN, Foreman.'
"And it further appearing to the court that plaintiffs' said motion should be allowed and that the judgment of this court, based upon said verdict, *Page 439 should be duly made and entered herein, now, therefore, it is
"Considered, Ordered and Adjudged that plaintiffs have and they are hereby given judgment against defendant for the sum of $26,000.00 and for their costs and disbursements taxed and allowed in the sum of $ ____.
"Circuit Judge."
It further appears that on the said first day of November, 1924, counsel for defendant, Baker County, procured from the court the following order:
"Be it remembered, that at a regular term of the circuit court of the state of Oregon, for the County of Union, begun and held at the court house in the city of La Grande, in said county and state, on Monday, the ____ day of ____, A.D. 192_, the same being the first Monday of said month and the time fixed by law for holding a regular term of said court when were present:
"The Honorable J.W. Knowles, Judge Presiding.
"Ed. Wright, District Attorney.
"C.K. McCormick, Clerk.
"Lee Warnick, Sheriff.
"When, on Saturday, the 1st day of November, A.D. 1924, on the ____ judicial day of said term, among others the following proceedings were had, to-wit:
"F.C. Oxman and C.A. Harrington, Partners as Oxman and Harrington, Plaintiffs, v. "Baker County, Defendant.
"This cause coming on upon the motion of the defendant, appearing by its counsel, W.S. Levens, William Smith, for an order of the court allowing the said defendant ninety days within which to file its motion for a new trial herein, and it appearing to the *Page 440 court that the verdict of the jury has heretofore been duly returned into court, and that an order giving the plaintiffs judgment thereon has been made upon the said verdict, and that the said plaintiffs by their counsel, Messrs. Nichols, Hallock Donald, now consenting in open court thereto, and it appearing to the court that the said motion is reasonable and that the same should be allowed,
"Therefore it is Considered, Ordered and Adjudged that the defendant Baker County should be and it is hereby allowed a period of ninety days from this date within which to prepare, present and file herein its motion to set aside the said judgment, and for a new trial herein,
"The said motion of defendant was made by the said counsel for defendant this day in open court.
"(Signed) J.W. KNOWLES, "Circuit Judge."
It appears that no motion for a new trial was ever filed, but that on the 27th of December, 1924, the defendant applied to the court and caused to be entered the following order, which was entered without notice to the plaintiffs and is, in effect, a duplicate of the original order entered on November 1, 1924, excepting, as will be seen, defendant was given to March 1, 1925, in which to prepare and serve its bill of exceptions:
"Now, on this 27th day of December, 1924, the above entitled matter coming duly on to be heard upon motion of plaintiffs, appearing by their attorneys, Nichols, Hallock Donald, for a judgment against defendant upon the verdict of the jury returned in the above entitled cause, and it appearing to the court that this is an action at law wherein plaintiffs seek to recover from defendant a sum of money on account of services performed by plaintiffs for defendant in connection with the construction of a certain highway in Baker County, Oregon, that issues having been joined under the pleadings in said cause, that a jury having been duly selected, empanelled *Page 441 and sworn on the 23rd day of October, 1924, that said cause having proceeded to trial before said jury, that testimony having been introduced on behalf of the respective parties to this cause, that counsel having argued said cause to said jury, that the court having instructed said jury on the law of the case and that said cause having been fully submitted, said jury did on the first day of November, 1924, retire for its deliberations on said cause, whereupon and on said last named date the said jury did return to the above entitled court its verdict in words and figures as follows, to wit: * *
"`We, the jury in the above entitled action, find for the plaintiffs in the sum of $26,000.00 (Twenty-six Thousand Dollars.)
"`M.W. HUFFMAN, Foreman.'
"And it further appearing to the court that plaintiffs' said motion should be allowed and that the judgment of this court, based upon said verdict, should be duly made and entered herein, now, therefore,
"It is Considered, Ordered and Adjudged that plaintiffs have and they are hereby given judgment against defendant for the sum of $26,000.00, and for their costs and disbursements taxed and allowed in the sum of $ ____, and defendant, Baker County, is hereby given to March 1st, 1925, to prepare and submit its bill of exceptions.
"(Signed) J.W. KNOWLES, "Circuit Judge."
Thereafter, and on the thirtieth day of December, 1924, defendant served its notice of appeal, which, omitting the formal parts, is as follows:
"You and each of you will please take notice that the above named defendant, Baker County of the State of Oregon, appeals to the Supreme Court of the State of Oregon from that certain judgment in the sum of twenty-six thousand dollars and costs and disbursements in favor of the said plaintiffs and against this appellant, the said defendant, which said judgment *Page 442 was entered by order of the above entitled court in said cause dated on, to-wit, the 27th day of December, 1924, said judgment being based upon the verdict of the trial jury therein returned into said court upon, to-wit, the 1st day of November, 1924, and that its said appeal is from the said judgment and the whole thereof."
Thereupon, and on the same date, defendant filed an undertaking on appeal, which is sufficient in form and substance excepting for the statement in the beginning that "plaintiff" appeals, but there is sufficient in the body of the undertaking to indicate that the use of the word "plaintiff" was a mere clerical error.
The plaintiffs now move to dismiss the appeal upon the ground that the real judgment in this case was the one of November 1, 1924, which is not mentioned in the notice, and that the alleged second judgment of December 27, 1924, is void. The insufficiency of the undertaking, in that the defendant is described in the introductory paragraph as the plaintiff instead of the defendant, is further alleged as a ground for dismissal. Another ground is also mentioned — that the judgment had been assigned to another party prior to the appeal. The existence of the facts in regard to the entry of the judgment is not seriously controverted.
MOTION DENIED.
For the motion, Messrs. Nichols, Hallock Donald. Contra, Mr. Wm. S. Levens and Mr. Wm. Smith. Taking up the grounds assigned in the motion to dismiss in their inverse order, we are of the opinion that the undertaking is possibly sufficient to bind the surety, notwithstanding the *Page 443 clearly clerical error of describing the defendant as the plaintiff in one portion of the undertaking. While the error in using the term "plaintiff" instead of "defendant" is apparently merely clerical, and might perhaps be disregarded, yet the respondents are entitled to a perfect undertaking that will not subject them to the possibility of having to go into a court of equity to have the instrument reformed before attempting to recover from the surety. This error, however, does not, in itself, defeat jurisdiction, since by reason of the provision of subdivision 4 of Section 550, Or. L., the appellant may be permitted to file a perfect undertaking when, as appears in this case, appellant has proceeded in good faith. We will permit the appellant to file such undertaking within twenty days from the filing of the decision here, under penalty of a dismissal of the appeal unless the order is complied with.
The suggestion that the commencement of a term of court in Wallowa County automatically terminated the term in Union County is unsound. It is true that both counties are in the same judicial district and the same judge is elected to preside over the court in both counties, but outside of this fact, which is not controlling, the court for each county is a distinct tribunal. It is not an uncommon practice for a judge to be called in from another district, and for court to be in session simultaneously in two counties in the same district. We hold that the Circuit Court for Union County began its term on the first Monday in October, 1924, and, in the absence of an order of final adjournment, continued open for the transaction of business until the next regular term, namely, the first Monday in February, 1925.
It appearing from the affidavits that the assignment of the judgment was merely for security, this *Page 444 objection, of itself, would not be sufficient for the dismissal of the appeal, or even sufficient to require substitution.
The first objection mentioned, however, is a matter of serious importance. The statute requires a judgment to be entered upon the date of the rendition of a verdict: Section 201, Or. L. This was done. It is objected that this order was not signed by the judge of the court, but the signature of the judge to such an order is not necessary. His duties cease with the allowance of the order; the actual entry of it in the records is a clerical duty of the clerk: 33 C.J. 1213; 15 R.C.L. 585, 586; Long v.Minto, 81 Or. 281, 285 (158 P. 805). On the face of the case here made by the affidavits pro and con we must assume that the real and original judgment in this case was the judgment of November 1, 1924.
It does not appear that this judgment was ever vacated or set aside, nor did the order allowing defendant ninety days in which to file a motion for a new trial in itself suspend the judgment. Notwithstanding such order, it was the duty of the defendant either to cause its motion for a new trial to be filed and heard within the sixty days or avail itself within that time of the privilege of appeal: Macartney v. Shipherd, 60 Or. 133 (117 P. 814, Ann. Cas. 1913D, 1257); Gearin v. Portland Ry.L. P. Co., 62 Or. 162 (124 P. 256).
The mere repetition of the judgment subsequently, even during the term, did not, of itself, set aside the original judgment rendered and entered at the time the law directed, and such entry, in the absence of an order setting the original judgment aside, is a mere nullity. The notice of appeal was served within sixty days from the date of the rendition of the original judgment. But said original judgment is not described in terms in the notice, but, on the *Page 445 contrary, the void judgment of the 27th of December, 1924, is described as being the one appealed from.
It is not the policy of the courts to seek occasion to dismiss appeals upon merely technical grounds, and while the date of the original judgment is improperly given as the twenty-seventh day of December, 1924, the notice of appeal also states that judgment was based upon "the verdict of the trial jury returned into court on the first day of November, 1924, and this appeal is from said judgment and the whole thereof." The only valid judgment is the judgment of November 1, 1924, and that judgment was based upon the verdict of the jury returned into court on the first day of November, 1924. We think this sufficiently identifies the judgment, and that the plaintiffs were not misled by the misdescription in the notice.
No bill of exceptions has yet been filed in this court, nor has this court granted any extension of time within which to file one. Upon the subject of a timely presentation of such a bill we express no opinion here, as the defendant in any event would have a right to appeal on the question of sufficiency of the pleadings.
The motion is denied, conditioned upon the appellant filing, within twenty days from the date of the handing down of this opinion, a good and sufficient undertaking on appeal, which shall accurately designate the parties. If there is any failure in this respect, or in any other respect, the appeal will be dismissed.
MOTION DENIED. *Page 446