Mason, Ehrman & Co. v. Estate of Lewis

McBBIDE, J. This was a proceeding in the circuit court upon a claim presented to the administratrix of the estate of Ben P. Lewis, deceased, and by such administratrix rejected, whereupon the plaintiff by petition, as prescribed by § 1241, O. L., presented its claim to the county court for allowance, and, the claim being disallowed, appealed to the circuit court. The judgment of the county court was rendered on the 24th day of July, 1926, and in the same month a notice of appeal to the circuit court was served and filed, and, as stated in the abstract, “the petition above mentioned and the claim thereto attached, as exhibit ‘A,’ were certified up to the circuit court.” The abstract is evidently incomplete in that it fails to show xvhen the statement was certified up to the circuit court, but we glean from the imperfect record brought up to this court that up to December 27, 1927, the petition had not been certified up to the circuit court; that later, upon a motion to dismiss the appeal and counter-motion by plaintiff to be permitted to do so, the circuit court directed it to be sent up, and that it was so sent up and filed in the circuit court. Although the record brought here does not show the fact, we may fairly assume, and the brief of counsel for *246 defendant seems to concede, that there was a “short transcript” containing the judgment appealed from, “the notice of appeal and proof- of service, and the undertaking on appeal,” certified up within the statutory time. There is nothing to show that this' transcript contained more, and the fact that the petition and copy of statement were not filed or brought up to the circuit court until December 26, 1927, when they were brought up presumably on the order of the circuit court taken in connection with the testimony of the clerk, clearly indicates that they did not accompany the “short transcript” which in itself did not intelligibly present the question to be decided. The court, under the statute, may extend the time for filing or completing the transcript, but under subd. 2, § 554, O. L., it is provided: “If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned, and the effect thereof terminated, but the trial court or the judge thereof, or the supreme court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same; but such order shall be made within the time allowed to file transcript, and shall not extend it beyond the term of the appellate court next following the appeal.” We take judicial notice that more than one full term of the circuit court of Klamath county had expired when the petition and statement herein were certified up to the circuit court. The petition was the very foundation of plaintiff’s case. To omit it would be like omitting the complaint or an abstract of it from a proceeding on appeal to this court. The responsibility for seeing that a correct transcript is filed in.the circuit court rests solely upon *247 the appellant. Section 554, O. L., provides that the appellant shall file with the clerk of the appellate conrt a transcript or snch 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. Other subdivisions of the same section require the clerk to deliver certain papers, et cetera, connected with the appeal, to the appellant. In brief, it is the right of the appellant to have as much of the record as he sees fit certified to by the clerk and delivered to him, and it is his duty, and not the duty of the clerk, to deliver what he has obtained to the clerk of the appellate court. So the presumption is that the transcript certified up on the appeal contains what the appellant desired to have incorporated therein. The present case is not complicated with matters pertaining to abstracts, and other matters incident to the limited rule-making power conceded to this court by the legislature, but a case to be construed solely by the terms of the statute. In Seaweard v. Malheur Drainage District, 89 Or. 40, 41 (173 P. 462), Justice Burnett in an opinion, dismissing the appeal, said: “The foundation of any judgment or decree is in the pleadings and other papers giving jurisdiction to the court rendering the decision and in equity cases on appeal these must be accompanied by the testimony taken in the court of original jurisdiction. Without knowledge of the fundamentals, we are unable to determine the validity of the superstructure embodied in the decree. In the drainage district law it is provided that an appeal may be taken from the decision of the county court to the circuit court in the same manner as appeals *248 are taken in equity cases, as by law. provided. After reference to appeals from judgments it is said in § 556, L. O. L.: “ ‘And upon an appeal from a decree given in any court the suit shall be tried anew upon the transcript and evidence accompanying it.’ “There is nothing in the record before us showing the original petition or the notice serving the office of process, nor any testimony whatever upon the issues involved. It is impossible from these data to give any intelligent attention to the plaint of the appellant. The appeal must therefore be dismissed.” In that case the proceeding was in equity, but the principle enunciated is equally applicable to a law action, and, having the petition as part of the transcript, is certainly as necessary in the case at bar as in the case cited. The case of Walker v. Firemen’s Fund Insurance Co., 122 Or. 179 (257 P. 701), is exactly in point here. The appellant filed the “short transcript” (notice of appeal, judgment and undertaking) within the statutory time, but was delayed by the failure of the court stenographer in getting out the transcript of testimony, and, owing to that fact, secured from the circuit judge consecutive orders extending the time, until the extensions reached past the next full term of the appellate court succeeding the taking of the appeal. After a thorough consideration of the case, we held that the appeal must be dismissed, the court, in conclusion, saying: “However, the legislature, does have the power to prescribe that the appellant shall file so much of the record as may be necessary to intelligibly present the questions to be decided, and it does have the power to prescribe the time in which that record must be filed in this court. These provisions of the statute,'while *249 not jurisdictional, are mandatory and must be obeyed. As stated the printed abstract was not filed in this court until the first day of the second term following the appeal. Until that time there was no record presented here sufficient to explain any question to be decided upon the appeal. The statute expressly says that the time for filing the transcript or abstract may be extended; but it also provides that it shall not be extended beyond the term next following the appeal. For appellant Mr. George W. Caldwell and Mr. D. E. Fletcher. For respondent Mr. Henry E. Perkins and Mr. R. C. Groesbeck. “Appellant’s failure to file this part of the record was fatal to the appeal and the motion to dismiss must therefore be allowed.” In this case, as in the ease cited, the court was reluctant to turn the appellant out of court without a hearing on the merits, but deemed the provisions of the statute absolutely controlling. The appeal is dismissed. Brown, Rand, and Rossman, JJ., concur.