On Motion foe Rehearing.
2. It is contended on motion for rehearing that the rule announced in our former opinion in this case (104 Pac. 963) is erroneous in holding that, where no cross-appeal is taken, a respondent will be treated as satisfied with the *351decree of the Court below, and will not be entitled to have such decree modified in his favor in this court. Counsel suggests that the decisions cited by us from this court were in cases where the appeals were not taken from the whole decree. We have carefully examined the original transcripts in these cases, and find that in Shirley v. Burch, 16 Or. 83 (18 Pac. 351: 8 Am. St. Rep. 273) ; Cooper v. Thomason, 30 Or. 162 (45 Pac. 296), and Goldsmith v. Elwert, 31 Or. 539 (50 Pac. 867), the appeals were all taken from the whole decree and not from a portion of it. The notice of appeal is lacking in the transcript in the case of Thornton v. Krimbel, 28 Or. 271 (42 Pac. 995), cited in our former opinion; but the other cases cited show that it was not the intention of the court to make any distinction between cases in which the appeal was taken from a part of the decree and cases in which the appeal was taken from the whole decree.
As to the second contention, that we should allow the missing notice and undertaking in this case to be supplied, we can only say that the filing in this court of a transcript containing a notice, undertaking, and final judgment is jurisdictional, and we have no authority to require such trascript to be sent up after the time limited by law for so doing has expired. The statute makes the filing of such transcripts a duty incumbent upon the appellant, and does not devolve it upon the clerk of the lower court. The fact that a custom of leaving the clerk to send up such transcripts has grown up in some counties in this State cannot change the low in this respect, nor permit us to assume jurisdiction after it has been lost. If we could do so in any case, we certainly would in this one, where the custom alluded to, taken in connection with the fact that defendant no doubt believed that the clerk had sent up the papers necessary to perfect the appeal, makes a case of hardship upon him which we would gladly relieve, if we could do so without a positive violation of the *352statute. But as the law has not made it the duty of the clerk to forward to this court a transcript on appeal, but. instead, has imposed that duty upon the appellant, we cannot say, as a matter of law, that the clerk has failed to perform an official duty or neglected to do any act required of him by law, and that for such reason we will relieve the appellant; from the consequences of not filing the papers necessary to complete his transcript on appeal.
The rehearing is denied.
Affirmed: Rehearing Denied.