delivered the opinion of the court.
This is a motion to dismiss an appeal. A decree was rendered in this cause December 18, 1912, establishing a boundary between contiguous lands of the parties hereto, and appointing commissioners to mark upon the ground the dividing line thus ascertained. Desiring to review such determination, the plaintiff on June 2, 1913, caused to be served and filed a notice of appeal but did not serve or file an undertaking therefor until the 13th of that month. Attempting to abandon the experiment undertaken to secure a reversal of the decree, the plaintiff on June 21, 1913, caused to be served and filed another notice of appeal and an undertaking thereon. The transcript having been filed with our clerk, this motion was interposed, based on the grounds, inter alia, that the order appealed from is not final, and that the attempt to take a second appeal was not made until after the expiration of the time prescribed.
1. Considering these reasons in the order stated, the decree complained of ascertained the location of
2. No appeal in this cause having been taken when the decree was rendered, six months from the entry thereof were originally allowed in which to take an appeal: Section 550, subd. 5, L. O. L. This statute was amended by abridging the six months, thus permitted to initiate a review of a judgment or decree, to 60 days; Laws Or. 1913, c. 319. The amendment referred to contains a clause as follows:
“Provided, that in all cases where the right to an appeal to the Supreme Court shall exist at the time this act shall come into force, the time for taking such appeal is hereby extended for the period of sixty (60) days thereafter.”
This later enactment contained no emergency clause, and took effect 90 days from the end of the session at which it was passed: Article IY, Section 28, of the Constitution. The session of the legislative assembly at which the amendment was passed ended March 4, 1913 (Laws Or. 1913, p. 866), and hence the act went into effect June 3d following.
It is argued by defendant’s counsel that as the first notice of appeal was served and filed prior to June 3, 1913, and as the attempt to abandon such undertaking to review the decree was not made until June 21,1913, the right to appeal did not exist when the amendment referred to took effect, and hence the enactment did not extend the time for taking the appeal, which limit
3. Where a party to a judgment or decree has taken and perfected an appeal, his right to have the determination of the trial court reviewed is exhausted, and he cannot thereafter take another appeal in the same cause: Schmeer v. Schmeer, 16 Or. 243 (17 Pac. 864); McCarty v. Wintler, 17 Or. 391 (21 Pac. 195); Nestucca Wagon Road Co. v. Landingham, 24 Or. 439 (33 Pac. 983); Harrington v. Snyder, 53 Or. 573 (101 Pae. 392); Hanley v. Stewart, 54 Or. 38 (102 Pac. 2); Moon v. Richelderfer, 56 Or. 246 (108 Pac. 178).
4. Where, however, such party attempts to appeal, but in consequence of some irregularity the appeal is not perfected, the endeavor to have the decree or judgment reviewed may he abandond, since the right to appeal still remains: Holladay v. Elliott, 7 Or. 483; Van Auken v. Dammeier, 27 Or. 150 (40 Pac. 89); Newberg Orchard Assn. v. Osborn, 39 Or. 370 (65 Pac. 81); Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997); Fisher v. Tomlinson, 40 Or. 111 (60 Pac.
In the case at bar as the first undertaking was not filed within the time limited, the appeal was not perfected, whereupon plaintiff’s counsel properly abandoned the attempt and took another appeal, and “the right to an appeal to the Supreme Court” within the meaning of the amendment of February 28, 1913, existed until the latter effort to appeal was perfected; the extension granted by the statute not haying elasped in the meantime.
It follows that the motion should be denied, and it is so ordered. • Motion Denied.