Driscoll v. Berg

RAND, J. Defendants move to dismiss the appeal in the above cause upon two grounds: 1, that the notice of appeal filed by plaintiffs fails to sufficiently identify the decree appealed from, and, 2, that the decree appealed from was a consent decree and hence not appealable. The record shows that on August 6, 1930, a decree in favor of plaintiffs and against defendants was made and entered in the circuit court for Clatsop county and that thereafter, on September 3, 1930, on motion of defendants, a decree reciting that the original decree “be and the same is hereby amended and modified nunc pro tunc as of August 6,1930.” The decree also recites that “counsel for plaintiffs consenting to the modification of said decree.” The notice of appeal states that: “plaintiffs * * * appeal to the supreme court * * * from the decree of the circuit court * * * made and entered in the above-entitled court and cause on the 6th day of August, 1930.” It is contended that because the modified decree was rendered on September 3, 1930, as of the date of August 6,1930, and became a substitute for the original decree, plaintiffs should have referred to it in the notice of appeal as of the date on which it was rendered and, not having done so, the notice of appeal is insufficient, although the amended'decree was entered in the records of the court as of August 6, 1930, the day when the original decree was entered. We think, in view of the holding of this court in Lee v. Gram, 105 Or. 49 (196 P. 373, 209 P. 474, 27 A. L. R. 1001), that, under the circumstances disclosed by this record, the descrip *501 tion of the decree appealed from was sufficient. The defendants could not have been misled by the description contained in the notice, nor have their rights been prejudiced. Edward C. Judd, of Astoria, for appellants. Hesse dk Franciscovich, of Astoria, for respondents. Nor do we find any merit in the contention that plaintiffs consented to the entry of the decree. Plaintiffs consented that the decree should be modified in certain particulars but the consent given was to a slight modification of the original decree and not to the entry of any decree against plaintiffs in the suit. The motion to dismiss the appeal must, therefore, be overruled. Coshow, C. J., dissents.