Pedro v. Vey

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 417 In Banc. On July 18, 1934, a judgment was entered against plaintiffs in the circuit court of *Page 418 the state of Oregon for Umatilla county. On September 15, 1934, plaintiffs filed notice of appeal, and on September 25, 1934, filed an undertaking thereon. To this undertaking no exceptions were filed, thus plaintiffs' appeal became perfected October 1, 1934: Oregon Code 1930, § 7-503, subd. 4. Appellants had until and including October 30, 1934, in which to file their transcript in this court: Id. § 7-507. On October 20, 1934, appellants filed in said circuit court and served on respondents a motion asking for an order extending the time 60 days in which to file said transcript. On October 22, 1934, the circuit court entered an order granting said motion and extending the time as therein requested. The transcript was duly filed in this court on December 20, 1934, and within the time thus fixed by the said order. On December 27, 1934, respondents moved to dismiss the appeal for the reason that the circuit court was without power to make the order of extension at the time it was made, having been made within the three-day period from the date of service of the motion on the respondents. If the order extending the time is void, then the transcript was not filed within the 30 days from the time the appeal was perfected and the appeal should be considered abandoned. "2. If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned, and the effect thereof terminated, but the trial court or the judge thereof, or the supreme court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same, but such order shall be made within the time allowed to file transcripts, and only after three days' notice has been given to the opposing party; * * *" Section 7-507, subd. 2. *Page 419 The statute is mandatory in its provisions when a failure to comply therewith will injure the public or a third party:Simpson v. Winegar, 122 Or. 297 (256 P. 562), and numerous cases cited therein. Respondents had notice of the motion and did not object to the court granting it, either before or after the order was signed. There was ample time in which the court could grant the extension. It would not lose jurisdiction until after the 30th of October, 1934. Respondents rely on Simpson v. Winegar, supra. In that case, no notice was given to respondent and the court did not obtain authority to make the order. In the instant case, notice was duly given respondents and the court would have full authority to make the order at the expiration of the three days from the date of service or at any time thereafter up to and including October 30, 1934. The respondents suffered no injury by reason of the order being made prematurely. The order was irregular but not void. This principle of law is analogous to where a judgment is entered prematurely: Woodward v. Baker, 10 Or. 491; Altman v. SchoolDistrict, 35 Or. 85 (58 P. 291, 76 Am. St. Rep. 468); Hodgdonv. Goodspeed, 60 Or. 1 (118 P. 167). The motion to dismiss is denied. *Page 420