Goss v. State Industrial Accident Commission

BEAN, C. J. This is an appeal from a judgment and decree reversing the order of the State Industrial Accident Commission denying plaintiff’s application for a rehearing of award of compensation. Respondent moves to dismiss the appeal upon the following grounds, to wit: (1) that no undertaking on appeal has ever been filed by appellant; (2) that notice of appeal was filed on or about March 2, 1932, and the bill of exceptions was not filed until May 3,1932; (3) that the appellant has failed to file an abstract as specified in Rule 6 of the Revised Rules of the Supreme Court, or as provided in section 7-507, Oregon Code 1930. It appears from the record that the judgment and decree appealed from was rendered and entered January 9, 1932. On March 1, 1932, appellant served notice of appeal in the cause upon the attorney for respondent by depositing a true copy of said notice of appeal in the United States postoffice in Salem, Oregon, addressed to A. W. Schaupp, 21 Loomis Building, Klamath Falls, Oregon, same being his office address, with postage fully prepaid thereon, and at the same time mailed to the county clerk of Klamath county, Klamath *148 Falls, Oregon, the original notice of appeal, together with proof of service, which was filed by said county clerk on March 3, 1932. On March 3 the judge of the circuit court for Klamath county, before whom the cause was tried, made and entered an order granting until May 9, 1932, within which the appellant might serve and tender its bill of exceptions in the cause. On March 22, 1932, a copy of the bill of exceptions was served by depositing the same in the United States postoffice at Salem, Oregon, properly addressed to the attorney for respondent, with postage fully prepaid. The original bill of exceptions with proof of service attached thereto was received and filed by the county clerk on March 23,1932, on which date the judge of the circuit court allowed said bill of exceptions and certified the same as true and correct. On March 23, 1932, appellant filed a transcript on appeal with the clerk of this court, consisting of copies of the decree or judgment, notice of appeal, proof of service of notice of appeal and order extending the time within which to tender the bill of exceptions, duly certified. On April 9, 1932, appellant served by mail a true copy of appellant’s abstract of record upon A. W. Schaupp, attorney for respondent by depositing same in the United States postoffice at Salem, Oregon, postage prepaid, properly addressed to the attorney for respondent and filed the original thereof with proof of service, and the required number of copies, with the clerk of this court. On May 11, 1932, appellant served a copy of appellant’s brief upon the attorney for respondent by mailing a copy thereof to said attorney, and filed the original with proof of service, and the required number of copies, with the clerk of this court. *149 Section 7-619, Oregon Code 1930, provides: “the state shall not be required to furnish any bond or undertaking upon appeal or otherwise in any such action or proceeding.” In Miller v. State Industrial Accident Commission, 84 Or. 507 (159 P. 1150, 165 P. 576), this court held that upon an appeal by the State Industrial Accident Commission to this court from an order reversing its disposition of a claim for compensation, the state is an interested party, and, under the provisions of section 7-619, Oregon Code 1930, the State Industrial Accident Commission is not required to file an undertaking upon appeal. The first point of the motion to dismiss is not well taken. Section 2-703, Oregon Code 1930, as amended by chapter 49, Laws of 1931, provides that “A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within sixty (60) days after the entry of the judgment or decree, or within such further time as may be granted by order of the court if application is made during the said period of sixty (60) days or within any extension that may be granted.” The record discloses that the bill of exceptions was filed with the clerk of the circuit court for Klamath county within the time provided by the order of the circuit judge, who tried the cause, extending the time for filing the bill of exceptions. The bill of exceptions was tendered and filed within the required time. The motion to dismiss refers to May 3,1932, the date on which the bill of exceptions was filed in this court and not to the date when the bill of exceptions was filed with the clerk of the circuit court and presented to the judge of that court. The transcript on appeal consisting of copies of the decree or judgment, notice of appeal, proof of service *150 of notice of appeal, motion and order extending time within which to tender bill of exceptions certified by the cleric, was filed in this court on March 23, 1932. On April 9, 1932, appellant served by mail a true copy of appellant’s abstract of record upon the attorney for respondent, which was within the required time of 20 days. Section 7-507, Oregon Code 1930, provides that within 30 days after an appeal has been perfected the appellant shall file with the cleric of the appellate court a transcript or such an abstract as the law or the rules of the appellate court may require of so much of the record as may be necessary to intelligibly present the question to be decided by the appellate tribunal together with the copy of the judgment or decree, the notice of appeal and proof of service thereof, and of the undertaking on appeal. Rule No. 6 of the Revised Rules of this court requires an abstract of record to be filed within 20 days after the transcript has been filed, containing a copy of so much of the record as may be necessary to a full understanding of the questions presented for a decision. In Walker v. Firemen’s Fund Ins. Co., 122 Or. 179, (257 P. 701), this court held that a transcript containing a certified copy of the judgment, the notice of appeal and proof of service thereof, and undertaking on appeal and nothing more, is sufficient compliance with the requirements of section 7-507, Oregon Code 1930. The transcript on appeal having been filed on March 23,1932, and the abstract of record having been served and filed on April 9,1932, it was filed within the statutory time. *151 Attorney for respondent asserts in an affidavit dated May 19,1932, that although it is claimed that the abstract of record was mailed to attorney for respondent on April 9, 1932, he has not received the same. Section 7-403, provides: “Service by mail may be made, when the person for whom the service is made, and the person on whom it is to be made, reside or have their offices in different places, between which there is communication by mail. ’ ’ And section 7-404, Oregon Code 1930, provides: “In case of service by mail, the copy may be deposited in any postoffice, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid. The service shall be deemed to be made on the first day after the deposit in the postoffice that the mail leaves the place of deposit for the place of address, and not otherwise.” See Haberly v. Farmers’ Mut. Fire Rel. Ass’n, 135 Or. 32, 34 (287 P. 222). Therefore, the law contemplates that, on the day after the abstract was deposited in the United States postoffice and the mail left the place of deposit, the service is deemed to have been made, and it cannot be insured that the party to whom the abstract or paper is mailed shall receive the same. The service of the abstract, as shown by the record, was in compliance with the statute and the rules of this court. The record discloses that the statutory requirements for the appeal have been complied with. Therefore the motion to dismiss the appeal is denied. *152 I. H. Van Winkle, Attorney General, and Miles H. McKey, Assistant Attorney General, for appellant. A. W. Schaupp, of Klamath Palls, for respondent.