Handy v. Thews

COSHOW, C. J. This cause comes on to he heard on a motion to dismiss the appeal. The basis of the motion is that time for taking appeal had expired before the notice was given. The suit ivas instituted to fix a disputed boundary. The decree was entered on October 8, 1928. January 25, 1929, time for filing the transcript in this court was extended fifteen days. The decree appointed commissioners to mark the boundary on the ground. The decree itself *117 defined that boundary. It is insisted by plaintiffs, who are respondents, that the appeal should have been taken from the decree entered October 8th. The notice of appeal is from the order confirming the report of the commissioners appointed to mark the boundary as described in the decree on the ground. No objection was made to the confirmation. -There was no issue determined when the report of the commissioners was taken up for confirmation. The decree describing- the boundary line between the land owned by the contestants was a final decree and an attempted appeal from the order of confirmation would not bring up that decree for examination on review: Columbia City Land Co. v. Ruhl, 70 Or. 246 (134 Pac. 1035, 141 Pac. 208). Defendants did not raise any issue when the order for confirmation was up and hence there is really nothing to appeal from in that order. The notice of appeal was not served in time to confer jurisdiction on this court over the order of confirmation. That order was made and entered on the twenty-third day of November, 1928. The order for an extension of time was made on the twenty-fifth day of January, 1929. An order for an extension of time must be made within the time to take the appeal. That time is fixed by statute and is sixty days from the date of the decree or order from which the appeal is taken: Or. L., § 550, subd. 5. It is sixty days from November 23d to January 22d. Defendants’ time to appeal expired on the twenty-second day of January, 1929, three days before the order was made for an extension of time. That is the only extension asked for or granted. This court never acquired jurisdiction of the cause. The appeal is dismissed.