Fratt v. Wilson

[544] On Motion to Dismiss Appeal. , Per Curiam, 1. This is a motion to dismiss an appeal. The record shows that the appeal was regularly taken and perfected, but, instead of the usual.transcript of the cause, there was filed in this court a printed abstract thereof, by agreement of the parties hereto, entered into in pursuance of Rule 13 (24 Or. 601, 37 Pac. 8). Plaintiff’s counsel now contend that jurisdiction cannot be conferred by consent of the parties, and, under section 541, Hill’s Code, is not acquired until the transcript is filed, and that, even if the abstract be regarded as supplying the place of the transcript, the one filed herein is not sufficient to enable the court to determine the appeal upon its merits, and for these reasons move to dismiss it. Whether the notice of appeal is to be considerd in the nature of process, upon the service of which this court obtains jurisdiction, and the transcript as the evidence by which the judgment is to be reviewed on appeal, so that the parties might stipulate the facts involved and ask a construction of the law arising thereon, or whether the filing of the transcript is to be deemed the final act, without which no jurisdiction can be obtained, we do not feel called upon to decide, for the plaintiff, having stipulated with the defendant that the printed abstract should be deemed sufficient for the trial of the cause on appeal, is not in a position to controvert the legal effect of his agreement upon the faith of which the defendant presumptively relied. An examination of the abstract leads us to the conclusion that it fairly presents the questions involved, and hence the motion to dismiss the appeal is overruled. Motion Overruled.