This is a motion to dismiss an appeal. The appellant's time for filing the transcript and abstract on appeal expired May 21, 1925, unless an order was made on or prior to that date extending the time within which to file said transcript and abstract in accordance with subdivision 2, Section 554, Or.
L. An order, signed by the judge who tried the case, appears in the record, dated May 27, 1925, and was filed by the clerk on May 28, 1925, granting twenty days' additional time within which to file the transcript on appeal. If this order was made at the date *Page 124 on which it appears to have been made, the subsequent order extending the time would be of no effect and the defendant is out of court.
The appellant's attorney made an affidavit that he actually appeared before Judge SKIPWORTH at Eugene, Oregon, on May 21, 1925, presented a motion and procured an order granting the appellant twenty days' additional time; that the date of May 27, 1925, is an error of the defendant's attorney. If the date on which the order was actually made was May 21, 1925, it would have been within the time allowed by law.
The appellant asks leave to apply to the Circuit Court for a corrected nunc pro tunc order to comply with what he states is the actual facts in the case. The leave will be granted the appellant and this motion will be continued for twenty days so that he can have the correction made if the trial judge agrees with him as to the facts. Five days' notice of the time and place of such application must be given to the opposing attorney, and in case of failure to file such corrected order, the appeal will be dismissed.
Authority for making such correction will be found in the case of White v. East Side Mill Co., 84 Or. 224 (161 P. 969, 164 P. 736).
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