MacMahon v. Hudd

Decided December 12, 1911.

On Motion to Dismiss.

(119 Pac. 348.)

Mr. Justice Moore

delivered the opinion of the court.

This is a motion to dismiss an appeal and to strike an abstract from the files. It is contended that the notice of appeal is insufficient to confer jurisdiction. Omitting the formal parts, the paper adopted to secure a transfer of the cause is as follows:

“Notice is hereby given that the plaintiff, Lois 0. Mac-Mahon, appeals to the Supreme Court of the State of Oregon from the whole of the judgment and order entered in the above-entitled court and cause on April 28, 1911, and appearing on the journal of said court at page 183 of Journal Number 5 thereof.”

It will be seen that neither the party who secured the judgment nor the one against whom it was rendered is specified in the notice of appeal.

1. In order to identify a judgment, the undertaking on appeal may be examined for that purpose. Moorhouse v. Donica, 13 Or. 435 (11 Pac. 71); Salem Traction Co. v. Anson, 41 Or. 562 (67 Pac. 1015: 69 Pac. 675). The condition of the undertaking filed herein reads:

“Whereas Lois 0. MacMahon, the plaintiff in the above-entitled action, appeals to the Supreme Court of the State of Oregon from the whole of the judgment and order made against her in the said action in the said circuit court in favor of the defendant in said action on the 28th day of April, 1911.”

2. Considering without deciding that the requirements of the statute (Sec. 550, subd. 1, L. O. L.) were not observed in framing the notice of appeal, the reference in the undertaking to the judgment sought to be reviewed aids the notice, rendering it sufficient to initiate a transfer of the cause. Keady v. United Rys. Co., 57 Or. 325 (100 Pac. 658). The notice of appeal and the undertaking therefor were served October 16, 1911, and filed two days thereafter, and as the transcript was not filed in this court until October 30, 1911, or more than six months after April 28, 1911, when the judgment was rendered, the question to be determined is whether or not the transcript was filed within the time prescribed. An appeal to the Supreme Court may be taken by serving and filing the notice of appeal within six months from the entry of the judgment appealed from. (Section 550, subd. 5, L. O. L.) Within ten days from the service of such notice, the appellant shall cause to be served on the adverse party or his attorney an undertaking and file the same with proof of service indorsed thereon with the clerk. Within five days after service of such bond, the adverse party or his attorney shall except to the sufficiency of the sureties in the undertaking, or he shall be deemed to have waived his right to do so. (Section 550, subd. 2, L. O. L.) From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof if excepted to, the appeal shall be deemed perfected. Section 550, subd. 4, L. O. L.) Upon the appeal being perfected, the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require. (Section 554, L. O. L.)

3. It will be remembered that the undertaking on appeal was served October 16, 1911. No objections appear to have been interposed to the sufficiency of the surety thereon, and hence the appeal became perfected October 21, 1911, within 30 days from which date the transcript or an abstract was required to be filed in this court. The transcript on appeal complies with rule 1 of this court (56 Or. 614: 117 Pac. ix), and was filed with the clerk thereof October 30, 1911, and within the time expressly limited therefor.

It is contended that the abstract that was filed is false in some particulars. Respondent’s counsel evidently considering such abridgment unfair filed an additional abstract as authorized by rule 7 of the Supreme Court. (56 Or. 616: 117 Pac. x).

4. It appears, however, that an index to appellant’s abstract was omitted, and her counsel, insisting that the oversight in this particular was occasioned by inadvertence, asks leave to supply the deficiency. The failure to attach to an abstract a table of its contents as required by rule of court is not a matter of jurisdiction, and, where the nonobservance of such command is not willful and a reasonable excuse is made for the omission, the party should be relieved of his default.

Permission will therefore be granted to correct the error which may be rectified by pasting into the abstract a typewritten index of its contents at any time prior to the hearing of the cause on its merits.

The motion should be denied, and it is so ordered.

Motion to Dismiss Denied.

Decided June 18, 1912.

Motion to Dismiss.

(124 Pac. 474.)

Mr. Justice Moore

delivered the opinion of the court.

This is a motion to dismiss an appeal. This action was instituted to recover the possession of the southeast quarter of section 15 in township 2 south of range 9 west of the Willamette meridian; the complaint being in the usual form. The answer denies most of the averments of the complaint and for a separate defense alleges:

“That defendant is in actual possession of the land described in plaintiff's complaint only as tenant of Agnes Reid, of the City of Portland, Multnomah County, Oregon, under a.lease dated February 28, 1907.”

For a further answer it is averred that Agnes Reid’s title to the premises depended upon a tax deed, setting forth the procedure whereby the conveyance was executed. A reply put in issue the allegations of new matter in the answer, whereupon the cause was tried, resulting in a judgment for defendant, and the plaintiff appealed.

Thereafter, as appears from a supplemental affidavit of defendant’s counsel, the plaintiff herein commenced a suit against Agnes Reid and Francis Trever, Jr., to determine an adverse .claim to the real property hereinbefore described. Agnes Reid, alone appearing, denied the allegations of the complaint and alleged her ownership of the land in question. The averments of new matter in the answer having been denied in the reply, the cause was tried, resulting in a decree, November 17, 1911, dismissing the suit and awarding to her the costs and disbursements, taxed at $22.50, which sum was paid by the plaintiff, who took no appeal; the time limited therefor having expired.

5. It is contended by defendant’s counsel that the suit having been dismissed, and the costs and disbursements incurred therein having been paid, the failure to take an appeal from the decree determined the controversy involved herein, and, this being so, the appeal from the judgment in the ejectment action should be dismissed. It is argued that the appeal herein was prosecuted against the defendant, Robert S. Hull, who was only the tenant of Agnes Reid; that the case at bar and the suit to determine an adverse claim wére between the same parties, involved the same issues, and related to the same land. The statute providing for the substitution of a party in lieu of a tenant is as follows:

“A defendant who is in actual possession may, for answer, plead that he is in possession only as tenant of another, naming him and his place of residence, and thereupon the landlord, if he apply therefor, shall be made defendant in place of the defendant, and the action shall proceed in all respects as if originally commenced against him. If the landlord does not apply to be made defendant within the day, the tenant is allowed to answer, thereafter he shall • not be allowed to, but he shall be made defendant if the plaintiff require it. If the landlord be made defendant on motion of the plaintiff, he shall be required to appear and answer within ten days from notice of the pendency of the action and the order making him defendant, or such further notice as the court or judge thereof may prescribe.” Section 326, L. O. L.

The answer in the ejectment action does not name the place of Agnes Reid’s “residence,” unless it can be inferred that her domicile or abode was in Portland. It does not appear, however, that she applied to be made defendant in that action, or that the plaintiff required that she should be made a party, or that any order was given making her a defendant. The rule adopted in Moores v. Moores, 36 Or. 261 (59 Pac. 327) is not controlling herein, for Agnes Reid was not a person against whom the ejectment action was prosecuted, and, though there may have been some privity of estate or contract between her and Hull respecting the land demanded, she was not a party to the record in the original case, and, this being so, the motion to dismiss the appeal therein should be denied; and it is so ordered.

Statement by Mr. Justice McBride.

. This is an action of ejectment to recover lands in Tilla-mook County. Defendant denies plaintiff’s title and affirmatively alleges title in his lessor by a deed from the sheriff on a sale for taxes.

Upon the trial a jury was waived,, and the court took the case under advisement and in vacation made findings and rendered judgment for defendant. The cause was tried on April 23j 1910, before Hon. William Galloway, one of the judges of the circuit court, and his findings and judgment were made and filed on September 21, 1910. On September 22, 1910, plaintiff filed a motion for new trial, which the record indicates was duly served upon defendant’s attorney. The motion was not subscribed by the attorney; but the return shows that the copy served was certified by plaintiff’s attorney to be a true copy of the original. The grounds of the motion were: (1) Insufficiency of the evidence to justify the findings and judgment; (2) because the findings of fact were insufficient to justify the judgment; (3) because the judgment, as based upon the findings, was contrary to law; (4) because of errors of law occurring at the trial and excepted to by plaintiff.

Motion to Dismiss Denied.

Mr. Justice Burnett took no part in the consideration of this motion.