Edwards v. Thorne

PER CURIAM. The respondents have filed a motion to dismiss the appeal in this action and to affirm the judgment appealed from in the respect hereinafter specified. On December 27, 1933, the judgment was entered by the circuit court in this case, in which judgment it was stated that the defendants had, in open court, given notice of appeal to the Supreme Court. On December 30, 1933, the undertaking on appeal was served and filed. Thereafter the plaintiffs excepted to the surety, who, on January 6,1934, appeared and justified before the court. On January 27, 1934, the court, without notice to the plaintiffs, entered an order extending the time in which to file the transcript to and including February 10, 1934. On the latter date the court again, without notice to the plaintiffs, extended the time in which to file the transcript until February 20, 1934. Both of those extensions of time were granted without compliance with § 7-507, subdivision 2, Oregon Code 1930. On February 14, 1934, the respondents filed herein a transcript of the proceedings in the circuit court, *670 together with their motion to dismiss the appeal and affirm the judgment as to the respondents, and their surety on appeal so far as the money judgment is concerned. Based on the foregoing section of our statute and the authority of Guenther v. Headrick, 145 Or. 701 (28 P. (2d) 1088), and precedents therein cited, the appeal must be dismissed. On the authority of § 7-507, subdivision 3, Oregon Code 1930, and McCargar v. New Amsterdam Casualty Co., 105 Or. 308 (209 P. 478), the judgment, so far as it is for the recovery of money, is affirmed. The appellants have filed a motion to postpone the hearing on the respondents’ motion to dismiss, and attached to said motion is an affidavit to the effect that there is now pending in this court an appeal from a decree in a suit instituted by the appellants herein against the respondents herein regarding the same real property involved in the present appeal. Since this court has no jurisdiction in the present attempted appeal except as to enforcement of the judgment appealed from so far as it is for the recovery of money, the request of appellants must be denied.