Nestucca Wagon Road Co. v. Landingham

Per Curiam. The record discloses that on the tenth of September, 1892, plaintiff served a notice of appeal on the defendant, and on the sixteenth of the same month perfected the appeal by filing an undertaking as provided by law, but neglected to file the transcript in this court until after the second day of the October term, or to obtain an order enlarging the time, for which reason the appeal was, on the twenty-fifth of January, 1893, dismissed. While the first appeal was pending and undisposed of, the plaintiff prepared and served a new notice of appeal, and filed a new undertaking, and, after the dismissal of the first appeal, filed a second transcript in this court, and the respondent now moves to dismiss this second appeal on the ground that by the failure to file the transcript on the first appeal within the time allowed by law, the right to an appeal was abandoned, and a second appeal could not be taken. This seems to be the effect of the statute, as construed in McCarty v. Wintler, 17 Or. 391 ¡(21 Pac. 195), in which the court said: “Nor has the appellant the right to take a second appeal from the judgment of a circuit [440] court where one has already been taken and perfected, though the rule is different where an attempt is made to take an appeal, but in consequence of some irregularity the appeal is not perfected.” When, therefore, an appeal has been perfected, the appellant is required by the law to file his transcript by the second day of the next ensuing term of this court or the appeal will be deemed abandoned, the effect thereof terminated, and his right to the appeal lost, unless he secures an order either of this court or of the court below enlarging the time for filing the transcript, and this can only be done upon notice and within the time allowed by law for such filing: Kelly v. Pike, 17 Or. 330 (20 Pac. 685). It follows, therefore, that the motion to dismiss the appeal must be allowed, and it is so ordered. Dismissed.