J. C. Corbin Co. v. Preston

BEAN, J.

Respondent moved to dismiss the appeal in this cause for the reason that the appellants failed to file a transcript of the record within the time allowed by law. Since the ruling upon the motion, a brief on behalf of respondent has been filed. We therefore give the matter further consideration, and make a memorandum of our determination.

It appears from the record that the decree herein was rendered on May 16, 1922. Defendants served a notice of appeal which was filed on July 14, 1922. On the 17th of that month exceptions to the sufficiency of the sureties on the undertaking on appeal were filed by respondent. On July 19, 1922, George O. Ulrich, one of the sureties on the undertaking, appeared before the judge to justify as to his qualifications as such surety. He was examined by Mr. Normal Kuykendall, an associate or member of the firm of Winter & Maguire, attorneys for respondent;, after which plaintiff by his counsel orally waived further examination of either surety. No record was made of the proceedings pertaining- to the justification until October 7, 1922. On the latter date, on motion of the plaintiff for an order nunc pro tunc to be entered as of July 19, 1922, allowing the undertaking on appeal, and upon the motion of defendants for entry of such order as of that date, October 7, 1922, the court denied the motion for a nunc pro tunc entry and approved the undertaking by the following order:

“It is Ordered and Adjudged, that said bond and undertaking be and the same is hereby allowed as of this date instead of the 19th day of July, 1922, the date of the actual allowance thereof.”

It is indicated by the order made by the court, and by the briefs of counsel, that after the examination of one of the sureties there was a misunderstanding or “controversy” between the parties which the court did not pass upon. It is claimed in the brief on behalf of appellants that a printed form of inquiry was demanded by counsel for respondent, other than the one appearing at the time of the examination of the surety, to be executed by the surety, after July 19, 1922. As we view the matter, what occurred in relation to the surety after the date mentioned is immaterial, as this court in passing upon a motion to dismiss an appeal will be governed entirely by the record: Boise-Payette Lumber Co. v. Dominican Sisters, 102 Or. 314 (202 Pac. 554). On November 6, 1922, the time for filing the transcript was, by order of the trial court, extended until and including November 20, 1922. On the date last mentioned such time was so extended to and including November 25, 1922. On the latter date the transcript of record was filed in this court. The question for consideration is: "When did the time of thirty days for filing the transcript as provided in Section 554, Or. L., begin to run? If the date of the justification of the surety is October 7, 1922, then the order for the extension of the time for filing the transcript, and the filing of the same, were within the statutory period. If the date of the justification is July 19, 1922, the time of the examination of one of the sureties, then the transcript was filed too late.

The exceptions to the sufficiency of the sureties were filed in due time. The proceedings following are directed by Section 550, subdivision 3, Or. L., which reads:

“(3) The qualifications of sureties in the undertaking on appeal shall be the same as in bail on arrest, and, if excepted to, they shall justify in like manner”,*

and subdivision 4 of that section, which so far as material here, reads thus:

“(4) 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 270, Or. L., is as follows:

“Justification of Bail. — For’ the purpose of justifi cation, each of the bail shall attend before the judge or clerk, at the tipie and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or clerk in his discretion may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff. ’ ’

Section 271, Or. L., reads thus:

“Allowance of Bail. — If the judge or clerk shall find the bail sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk of the court in which the action is pending; * * ”

, In the case of Moorehouse v. Weister, 56 Or. 126 (95 Pac. 497, 107 Pac. 470, 108 Pac. 121), this court, after referring to the statute, in determining whether the justification of the sureties on an undertaking on appeal is at the time the surety appears before the officer for examination, or at the time the examination is completed, and the undertaking approved, held as follows:

“Under the statute the justification of a surety consists in his examination before the officer at a time and place specified, the reduction of such examination to writing, and signing of the same by the surety, when requested, and a finding that the surety is sufficient by the officer before whom the examination is had, which is evidenced by the indorsement on the undertaking.”

See, also, Logan v. Cross, 98 Or. 274 (192 Pac. 656, 1119).

It is clear from the statute, and the opinion referred to, that the proceedings for justification of the sureties upon an undertaking on appeal after exceptions to the sufficiency of such sureties have been filed, should be evidenced by an indorsement on the undertaking by the officer before whom the examination is made, whether the judge or clerk, or by some written memorandum indicating that the undertaking on appeal is approved. The requirement of the statute as to indorsement has a twofold purpose; one to show the official approval of the bond, and the other to definitely fix the time for filing the transcript of record.

There is no indorsement of the allowance on the undertaking on appeal in the present case. Therefore the order of the court allowing the undertaking stands in place of such an indorsement. The justification was not complete until after the examination of one of the sureties, and the waiver of respondent as to the examination of the other surety, and the reduction of such examination to writing, the signing of the same by the surety, if it was requested, and the finding by the judge that the sureties were sufficient. This finding, as stated, must be evidenced by an indorsement on the undertaking, or an order entered approving the bond. Such order, in the present case, was recorded on October 7, 1922. In other words, the law does not permit the matter of the justification of the sureties upon an undertaking on appeal to be left for determination by proof dehors the record, which would not only endanger the rights of the parties, but tend to cause confusion and misunderstanding.

In Cantrall v. Sterling Mining Co., 61 Or. 516 (122 Pac. 42), the justification of the surety was in writing waived by counsel for plaintiffs upon a certain date, and an entry thereof made in the record. Such waiver was held to be tantamount to a justification. The waiver of counsel mentioned in the present case would apply more particularly to the surety who was not examined, and would not obviate the necessity of making some record of the allowance of the undertaking to serve as an indorsement of the allowance of the undertaking by the trial judge.

The justification of the surety having been completed and the undertaking on appeal approved on October 7, 1922, the transcript was filed within the statutory period, as extended by orders duly made by the trial court.

The motion to dismiss the appeal is denied as in our former order.

Motion to Dismiss Denied.

7 Right to rely on representations of obvious facts, or facts of which the defrauded: party has knowledge, see note in 37 L. R. A. 595.

8 What amounts to false representation of existing fact, see note in 1 Ann. Cas. 980.