Barbre v. Goodale

On Motion to Dismiss. Per Curiam. 1. This is a motion to dismiss the appeal for want of notice. The appellant filed a cross-motion, based upon an affidavit and accompanying papers, from which it appears that within the time allowed by law a notice of appeal was regularly served upon the attorneys for respondent, and the same filed with the clerk of the circuit court, with a certificate of service attached thereto as follows: “State of Oregon, County of Lane, ss. I hereby certify that I served the within notice of appeal within said state and county on the second day of April, eighteen hundred and ninety-four, on the within named defendants George B. Dorris and George' A. Dorris [468] by delivering to them and each of them in person a true and correct copy of this original notice. J. E. Noland, sheriff of Lane County, Oregon, George Croner, deputy.” For some reason, not explained, tho paper containing the alleged proof of service becamo detached from the original notice, and could not b.e found until after the transcript had been filed in this court, and hence does not appear therein. Although Messrs. George B. and George A. Dorris were the attorneys for the respondent, and as such could have been and were in fact served with the notice, the proof of such service as indorsed or attached to the notice of appeal when filed is admittedly imperfect. But under the rule in Dolph v. Nickum, 2 Or. 202, and Seeley v. Sabastian, 3 Or. 563, it seems to us the appellant should be allowed to amend the return to conform to the fact. The cases of Briney v. Starr, 6 Or. 207, and Henness v. Wells, 16 Or. 266, relied upon by respondent, are to the effect that the proof of service must accompany and be filed with the notice of appeal, but in neither of these cases was there any proof or attempted proof of service so filed, and there was therefore nothing to amend, while in the case at bar there was an alleged, though imperfect, proof of service filed with the notice, and hence this case comes within the rule announced in the two cases first cited, and not within the cases relied on by the respondent. We think, therefore, the motion to dismiss the appeal should be overruled, .and the crossnnotion to amend allowed. Overruled.