In Banc. The respondent moves to dismiss this appeal upon the ground that the appeal has been abandoned by the appellant. The record,inter alia, discloses the following facts: The judgment appealed from was rendered June 30, 1930. At that time appellant gave notice in open court of an appeal to this court, which was afterwards, on September 3, 1930, entered nunc pro tunc as of June 30, 1930. On July 8, *Page 205 1930, appellant filed an undertaking on appeal. No objections to the undertaking were filed. The appeal therefore became perfected July 14. Plaintiff had thirty days from that date within which to file the transcript in this court: Oregon Code 1930, § 7-507. Within that time and on August 1, an order was entered in the circuit court extending the time within which the appellant could file his transcript on appeal to and including the 15th of September, 1930. On September 12, 1930, appellant filed his transcript of record in this court.
Taking these facts by themselves there can be no question that the transcript was filed in time and the proceedings thus far were regular.
We now come to the controversial matters. By reason of the notice of appeal given on June 30, 1930, not having been entered at that time, appellant thereafter, on August 26, 1930, served and filed a new written notice of appeal, and on August 30, 1930, plaintiff served and filed another undertaking on appeal.
It is well settled that when a party abandons an appeal by allowing the time in which the transcript may be filed to expire without having filed such transcript, the appeal will be dismissed as abandoned: Ogden v. Hoffman, 88 Or. 503 (172 P. 503); Hill v. Lewis, 87 Or. 239 (170 P. 316); Columbia CityLand Co. v. Ruhl, 70 Or. 250 (134 P. 1035); Moon v.Richelderfer, 56 Or. 246 (108 P. 178); Nestucca Wagon Road Co.v. Landingham, 24 Or. 439 (33 P. 983). Nevertheless, until an appeal is perfected, it may be abandoned and a new appeal taken:Van Auken v. Dammeier, 27 Or. 150 (40 P. 89); Holladay v.Elliott, 7 Or. 483. *Page 206
Here, however, it is seen that the transcript on appeal was filed within the time allowed by law, computing such time from the time of the giving of the notice of appeal in open court.
We think the fact that the appellant filed the second notice of appeal, which could not avail him, did not vitiate the first notice of appeal or render the proceedings ineffective. No case comes to our attention where, by reason of two notices of appeal and the filing of a transcript within the proper time under the first notice of appeal, the appeal has been considered as abandoned. In short, the appellant was attempting to perfect his appeal instead of abandoning it when he filed the second superfluous notice of appeal. The trial judge, as we understand, was away on a vacation at the time the second notice of appeal was filed as an attempted precaution.
The motion to dismiss the appeal is therefore denied.