De La Montayne v. De La Montayne

COSHOW, C. J. Plaintiff-respondent moves to dismiss the appeal in this ease on the alleged ground that the transcript of evidence was not filed in time to confer jurisdiction on this court. The learned counsel for respondent has confused the transcript of evi *25 dence with the transcript required under § 554, O. L., for conferring jurisdiction on this court. The appeal was perfected March 11, 1929. The transcript, sometimes called a short transcript, was filed in this court on the 5th day of April, within 30 days from the time the appeal was perfected. The filing of the other proceedings, such as the abstract of record, the transcript of testimony and briefs, are necessary to the orderly trial of the cause here but are not jurisdictional. This question, we thought, was settled for all time by the decision in Walker v. Fireman’s Fund Ins. Co., 122 Or. 179 (257 Pac. 701). The opinion in that case was written by Mr. Justice Band and is an elaborate discussion of the principles involved and is a collation of the authorities in this state. In the case of Lasene v. Syvanen, 123 Or. 615 (257 Pac. 822, 263 Pac. 59), the same learned justice again reviews the authorities. By virtue of the decision in those two cases the motion to dismiss must be denied. No intention to abandon the appeal is manifest in the conduct of appellant. Conceding that the transcript of testimony and the abstract were filed a day late, the court is not thereby divested of its authority. For appellant there was a brief over the name of Mr. F. H. Mills. For respondent there was a brief over the name of Mr. D. E. Van Vactor. Motion to dismiss denied. Brown, J., absent.