Smith v. Dwight

Mr. Justice Eakin

delivered the opinion of the court.

1, 2. This is a motion to dismiss an appeal for a defect in a notice. This notice is admitted to be snfficient, except that it does not name the conrt to which the appeal is taken. The notice was served on thq sixteenth day of February, 1915, and the motion to dismiss was served on the 14th of April, nearly two months afterward. An amended undertaking was given in response to the assignment in the motion to dismiss, .which questions the sufficiency of the undertaking also. The new undertaking describes the judgment as being appealed to the Supreme Court of the State of Oregon, and remedies other defects therein. This amended undertaking should have been filed upon a leave obtained from this court, and as an independent pleading in said proceeding; but overlooking that omission, which is not questioned, it may be considered as in aid of the notice both as to the description of the court to which the appeal was taken and the judgment from which it is taken. Under the authority of Holton v. Holton, 64 Or. 290 (129 Pac. 532, 48 L. R. A. (N. S.) 779), the amended undertaking aids the notice of appeal by designating the court to which the appeal was taken. However, when an appeal is from a judgment of the Circuit Court which can be appealed only to the Supreme Court of the state, it would seem to be an immaterial error to omit the naming of such court. It is said in 2 Cyc. 813, that failure to specify the court to which the appeal is taken, there being only one court to which it may be taken, will not be considered as fatal to the jurisdiction of this court. In Holton v. Holton, 64 Or. 290 (129 Pac. 532, 48 L. R. A. (N. S.) 779), this point was made in the motion in that case, and the notice was held sufficient.

The motion to dismiss is denied. Denied.

This is a suit to quiet title to the west half of the southwest quarter of section 1, and the northeast quarter of the southeast quarter and the southeast quarter of the northeast quarter of section 2, township 1 north, range 10 west of the Willamette Meridian, in Tillamook County, Oregon. From a decree in favor of the plaintiff, defendant appeals. The complaint is in the usual form in such cases.

In his answer defendant denies the plaintiff’s title, and further sets up as his muniments of title to the land a sheriff’s deed executed pursuant to a decree of foreclosure of a delinquent tax certificate, and the other a sheriff’s deed upon sale on execution of a judgment in the County Court. The reply put in issue the affirmative matter of the. answer.

Modified.

For appellant there was a brief over the names of Mr. G. W. Talmage and Mr. E. J. Claussen, with an oral argument by Mr. Talmage.

For respondent there was a brief over the names of Mr. Frank Holmes and Mr. T. B. Handley, with an oral argument by Mr. Holmes.