Doehler v. Lansdon

COSHOW, C. J. Respondents, who are plaintiffs, have moved the court for an order dismissing the appeal taken by defendants in the above-entitled matter. The motion to dismiss is based on the claim that the undertaking is insufficient in several particulars: First, that the liability of appellants and their surety is limited therein. Second, the undertaking is not sufficiently executed. Third, authority for subscribing the name of the surety is not shown. First, the undertaking is in the usual form except that the word “damages” is omitted from the specific statement of appellants’ obligation which reads: “That the said appellants will pay all costs and disbursements which may be awarded against said defendants on the appeal.” The undertaking in that particular is insufficient: Steed v. Cavanaugh, 80 Or. 62 (151 P. 968). Second, the undertaking is described as follows: “L. Landson and Mary M. Landson, “Defendants and Appellants, “By: P. J. Gallagher, their attorney. “American Surety Company of New York, “By: W. A. King, Resident Vice-President, “Surety. “Attest: N. Cody, “Resident Asst. Secretary.” It is not necessary that the undertaking should be signed by the appellants: O’Connor v. Towey, 70 Or. 399, 401 (140 P. 625). Consequently, if it be conceded that an attorney does not have the authority to bind his client by signing an undertaking on appeal for them, the objection that the undertaking is not prop *690 erly executed is immaterial. The liability of the surety is not diminished or limited by the attorney signing the names of the appellants thereto. P. J. Gallagher, of Portland, for appellants. Oren Richards, of Portland (Richards & Richards, of Portland, on the brief), for respondents. Third, the signature of the surety was made by W. A. King, resident vice president, and attested by N. Cody, resident assistant secretary. The proper place and time for excepting to the surety was in the circuit court within five days after the undertaking was served on defendants. It is now too late to take exception to the surety on the undertaking. The objection to the surety as made by respondents amounts simply to an exception to the sufficiency of the surety. It is executed in the proper form and if the respondents were not satisfied with the surety they should have taken exception in the circuit court. The motion to dismiss the appeal will be allowed unless within 10 days after the date of this decision appellants file a sufficient undertaking.