Winter v. Heyden

PER CURIAM. On April 18, 1934, the defendant filed in this court a transcript on appeal containing the original pleadings, the original bill of exceptions, the original notice of appeal, and undertaking on appeal with service indorsed thereon, and a certified copy of the judgment appealed from. All of these original papers were properly certified to and authenticated by the clerk of the court below. The statute and the rules of the court provide that, in order to give the court jurisdiction upon an appeal, it is necessary that a transcript be filed containing a certified copy of the notice of appeal with indorsement of service thereon, a certified copy of the undertaking and a certified copy of the judgment appealed from. All of these papers are here with the exception that, instead of certified copies of the notice and undertaking on appeal, the originals are included in the transcript. The plaintiff moves to dismiss this appeal because the original notice and undertaking on appeal, and not certified copies thereof, were filed with the transcript. In Smith v. Algona Lumber Co., 73 Or. 1 (136 P. 7, 143 P. 921), the respondent moved to dismiss the *22 appeal mainly upon the ground that the transcript, which contained the original pleadings, also contained the original judgment entry, notice of appeal and undertaking on appeal and did not contain certified copies of said three last mentioned papers. Then, as now, the statute provided that: “Upon the appeal being perfected the appellant shall, within thirty days thereafter, file with the clerk 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 a copy of the judgment or decree appealed from, the notice of appeal, and proof of service thereof, and of the undertaking on appeal; * * Section 7-507, Oregon Code 1930. Both under the statute and the decisions of this court, the filing within the time limited of a transcript containing copies of the three papers last referred to was jurisdictional and the question of whether a transcript containing the original of these three papers and not certified copies thereof deprived the court of its jurisdiction was squarely presented to the court for decision. Under those facts and in disposing of the question, the court said: “We think the failure of the clerk to include in the transcript copies of the judgment, notice of appeal and proof of service thereof, and undertaking on appeal, is not jurisdictional, in view of the fact that this court is in possession of the originals * * and, based upon such ruling, the court held: “The motion to dismiss will be denied, and appellant’s suggestion for a diminution of the record will be allowed, and the rule issued to supply copies of the record adverted to, with direction to return the originals thereof to the clerk of the trial court.”. *23 There has been no amendment of the statute, so far as it affects this question, since the above decision was rendered and no decision of this court overruling it or which raises any doubt as to the correctness of the decision in that case. The motion to dismiss, therefore, will be denied. In filing a transcript on appeal our rules provide: “In civil cases the copy of the judgment or decree appealed from, notice of appeal and proof of service thereof, and undertaking on appeal shall be prefaced by a page stating the title of the court, and cause, and names of the judge and attorneys: Walker v. Fireman’s Fund Ins. Co., 122 Or. 179 (257 P. 701).” These papers were not prefaced by a page stating the title of the court and cause and the names of the judge and attorneys, as required by said rule. The omission, however, was not shown to be wilful and arose wholly from inadvertence. A compliance with the rule, while necessary, is not jurisdictional. This court, therefore, may permit the rule to be now complied with and it is ordered that the appellant shall comply with the rule within ten days from the date of this order overruling the motion to dismiss and granting the permission. The same order will be made here, permitting the filing of certified copies of the judgment appealed from, the notice of appeal with proof of service thereof, and of the undertaking, as was made in Smith v. Algona Lumber Company, supra. It is so ordered. *24 Homer I. Watts, of Athena, for appellant. John F. Kilkenny, of Pendleton (Raley, Raley & Warner, of Pendleton, on the brief), for respondent. Argued at Pendleton, October 30; reversed November 20; rebearing denied December 31, 1934