Alberson v. Mahaffey

By the Court, Shattuck, J.: The undertaking on appeal is defective. There is no affidavit of the surety as to his qualifications, ánd no recital or averment whatever of his qualifications. This case is within that of Holcomb v. Teal, 4 Or. 352, which requires the affidavits of the sureties in an undertaking on appeal to be filed contemporaneously with the filing of the undertaking. The motion to dismiss the appeal because of the insufficiency of the undertaking, should be allowed. No amendment of the undertaking, or leave to now perfect the appeal by filing a new undertaking, can be allowed. The rule announced on this subject in Cross v. Chichester, 4 Or. 114, should apply to this case. The application to file a new undertaking ought to have been made in the form of a cross-motion before the hearing of the motion to dismiss. Motion to dismiss allowed.