Seeley v. Sabastian

McArthur, -7. It was ruled in Dolph v. Nickum (2 Ogn. 202), that this court could and would, in furtherance of justice, allow the return of service of notice of appeal to be amended so as to conform to the facts. [564] In this case the return is to some extent imperfect, but it appears tbat it can be amended so as to meet the fullest requirements of tbe law, and at tbe same time conform strictly to tbe facts. From an examination of tbe record we are satisfied tbat by denying the motion, we would binder rather tbat further justice, and as no sufficient reasons are urged to warrant a departure from tbe rule in tbe case cited, we will allowthe motion. Tbe return may be amended. Allowing this amendment, necessarily disposes of tbe respondent’s motion to dismiss, therefore we proceed to tbe consideration of tbe motion to strike from tbe files tbe statement of facts. Tbe record discloses tbat the decree in tbe court below was entered on Thursday, March 30, 1870; also tbat on May 10, 1870, the judge made an order enlarging tbe time for making, filing and serving tbe statement of facts until May 20,1870, and also tbat service thereof was made May 19, 1870. Section 526 page 280 of tbe code as amended in 1866 (see law of Oregon 1868 p. 159), declares, that when a party “wishes a statement of tbe case to be annexed to tbe record of tbe judgment, decree or order, be shall within twenty days after tbe entry of such judgment or order prepare such statement,” and be “shall serve a copy thereof upon tbe adverse party.” In this case it appears tbat after tbe expiration of tbe twenty days, within which tbe statement of facts is required to be made and served, an order was granted enlarging tbe time for making and serving tbe same, such order falling within tbe scope and meaning of tbat part of tbe section of tbe code above cited, which provides, tbat “tbe several periods of time above limited maybe enlarged,1* upon good cause shown by tbe judge before whom tbe cause was tried.” Inasmuch as tbe time prescribed by statute bad expired before tbe enlarging order was made, it is insisted tbat tbe said order was ipso facto void, and tbat tbe statement of facts accompanying tbe transcript, should be considéred a nullity and stricken from tbe files. A similar provision to tbe one cited exists in tbe laws of California (see section 340, Civil Practice Act), and tbe supreme court of tbat state in tbe [565] case of Leach v. Allen (2 Cal. 95), upon a point similar to the one presented in this case said: “If the appellant allow the twenty days to expire after taking the appeal, without framing a case, he waives his right to have the case stated, and a subsequent order of the court made without notice to the respondent allowing further time to make up the statement, is a nullity.” In the case under consideration, no notice of the application for an order enlarging the time, was served. Under the practice in this state, it is questionable whether such notice would have had any legal force whatever, although upon this point we do not pass. Bryan v. Maume (28 Cal. 238) is an analogous case, and the same conclusion is substantially reached as in the case above. In Lindley v. Wallis (2 Ogn. 201) it was held by this court, “that the application for extension of time for completing and filing the transcript must be made within the time prescribed for the performance of these requirements.” The analogy between that case and the one now before the court is perfect, and by a parity of reasoning, tho only conclusion that can be logically reached is, that the order enlarging the time within which the law required the statement to be made and served, must be made within the time prescribed for the performance of said acts, that is to say, before the twenty days have expired. It follows therefore, that the motion to strike the statement of facts from tho files should prevail. It is so ordered.