Paul v. Livestock State Bank

MoBBIDE, C. J.

This is a motion to dismiss the appeal. The record presents a singular mixture of mistakes and omissions. The first ground is the failure to serve and file an undertaking on appeal within the time required by law. This case was decided by Judge Hewitt, April 2, 1925. On April 4th, notice of appeal was served and filed. On May 1st, an undertaking on appeal was filed, and a transcript on appeal was filed June 4, 1925. The abstract of record was filed with the clerk at Pendleton, July 16 th.

Thus it will be seen that twenty-seven days elapsed between the service of the notice of appeal and service and filing of the undertaking. It appears from the statement of counsel for appellants that after he made service of the notice of appeal, he applied to the judge, who tried the case, to fix the amount of the undertaking, which was to include a stay'of proceedings. The court fixed the stay bond at $2,500, which appellants were unable to give and appellants’ attorney applied to the court for a reduction. On the twenty-fifth day of April, the judge wrote to appellants’ attorney suggesting’ an ordinary appeal bond in the sum of $300. instead of the stay bond, which letter was received on April 28th, and on May 1st appellants executed and served the required undertaking and surrendered their ranch to the respondents.

The motion to dismiss, for the reason that the undertaking was not filed within ten days after service of notice of appeal, was not made within ten days after that fact came to the knowledge of the appellants. The statute requires an undertaking to be served on the adverse party. It is certain, therefore, respondents must have known that it had not been served within the time required by law, and under Eule 23 of this court, it was their duty to file a motion to dismiss within ten days after the failure to so serve and file the undertaking came to their knowledge. Otherwise, the objection is deemed to be waived: Mitchell v. Coach, 83 Or. 45 (153 Pac. 478, 162 Pac. 1058). See, also, Stone v. First Nat. Bank, 100 Or. 528 (193 Pac. 1023, 197 Pac. 304, 198 Pac. 244.)

By an order of this court the time for filing the abstract of record was extended to and including July 15th. A copy was sent to the printer with instructions to forward printed copies to appellants’ attorney not later than the 12th of July, but instead of doing this, the printer sent the copies direct to the clerk at Pendleton, where they arrived and were filed on the 16th, one day late. Copies were received by appellants’ attorney and served on the 16th and filed a day or two later.

The abstract is a bulky affair and evidently an expensive one to print, and the fact that it was prepared indicates that the appellants were doing everything in their power to perfect their appeal. The time for filing the brief was extended by an order of this court and the briefs were filed in time.

The filing of the abstract of record within the required time is not a jurisdictional matter, and in view of the evident good faith of the parties in seeking to perfect their appeal as shown by their having printed an expensive abstract and brief, we feel disposed to excuse the omission; but there is a limit somewhere to judicial charity to the mistakes of counsel, and, so far as appellants are concerned, no delay on their part will hereafter be excused which might tend to prevent the hearing of this appeal at the October term of court at Pendleton.

The motion is overruled. Motion Overruled.