Leonard v. Bonser

COSHOW, O. J. On the sixth day of May, 19.29, plaintiff filed a second motion to dismiss this appeal. The first motion was denied with permission to represent the same when the cause came on to be heard on its merits. The second motion to dismiss is based upon an affidavit of Frank Schlegel of attorneys for plaintiff. The affidavit recites in effect that since the appeal was taken the controversy between plaintiff and defendants has been entirely settled. This affidavit is not controverted. On the sixth day of May, 1929, a stipulation was filed submitting the cause on briefs. The determination of other cases *619 submitted before tbe sixth day of May, 1929, prevented tbe court from considering tbe second motion to dismiss sooner. It is tbe settled law of tbis state that when a judgment has been adjusted or settled after appeal has been taken and before tbe bearing of the cause in tbis court, the appeal will be dismissed: West v. Broadwell et at., 124 Or. 652 (265 Pac. 783); Barnes v. State Industrial Acc. Com., 112 Or. 41 (228 Pac. 684); Graves v. State Industrial Acc. Com., 112 Or. 143, 147, 148 (223 Pac. 248); Thomas v. Booth-Kelly Co., 52 Or. 534, 535 (97 Pac. 1078, 132 Am. St. Rep. 713); Elwert v. Marley, 53 Or. 591 (99 Pac. 887, 101 Pac. 671, 133 Am. St. Rep. 850). Appeal dismissed. Brown, J., absent.