French v. C.F. T. Company

COSHOW, J. When the court rendered its decree on the tenth day of October, 1925, and that decree was entered by the clerk on the bar docket, the decree became final unless set aside. The certified copy of the decree attached to the notice of appeal shows that the decree was so rendered and entered on the journal on the tenth day of October, 1925. Any time after that date either party had the right to appeal therefrom. Spreading the journal entry on the journal is purely a ministerial act and the failure of the clerk to promptly spread the journal entry on the journal does not change the finality of the decree or prevent an appeal therefrom. No objection was made in the Circuit Court to the sufficiency of the undertaking on appeal. Ordinarily a transcript should not be filed in this court until time for objecting to sufficiency of the surety has expired: Section 550, subd. (4), Or. L. Filing the transcript while objections to the surety on the undertaking were pending before the Circuit Court was held to be premature in Graf v. Pearcy, 76 Or. 488 (149 Pac. 532). But where no objections to the surety were made, and application was made in this court *535 for a restraining order pending’ appeal, filing a transcript in this court before expiration of the time allowed for excepting to the sureties was field not to be premature in Grand Prize Hydraulic Mines v. Boswell, 83 Or. 1 (151 Pac. 368, 162 Pac. 1063). Another question raised in opposition to the motion was the sufficiency of the undertaking on appeal. The attorneys for the appellants applied to the circuit judge for an order fixing the amount of the undertaking for the purpose of staying execution pending the appeal. The difference of opinion about the amount of that undertaking between the circuit judge and the attorneys for appellants resulted in the appellants filing an undertaking for the purpose of staying execution, under Section 551, subdivision 1. The surety on the undertaking is a surety company authorized to become t sureties on such obligations in this state. It is not limited as to the amount. We believe that it amply protects the plaintiff. The nature of the litigation is such that the property involved would in all probability be destroyed pending the appeal. The property is a stock of merchandise and the decree directs the receiver to take possession of it and sell it, pay the debts of the defendant corporation 'and distribute ultimately any surplus remaining among the stockholders. We believe the appellants are entitled to have the property remain as it is until the appeal shall have been determined in this court: Helms, Groover & Dubber Co. v. Copenhagen, 93 Or. 416 (177 Pac. 935); Grand Prize Hydraulic Mines v. Boswell, 83 Or. 1-4 (151 Pac. 368, 162 Pac. 1063). *536 For these reasons the application for an order staying proceedings pending the appeal is granted. Injunction Allowed. Mr. Justice Burnett took no part in this opinion.