Wachsmuth v. Routledge

Decided 27 December, 1897. On Motion to Dismiss Appeal. [51 Pac. 443.] Mr. Chief Justice Moore delivered the opinion. This is a motion to dismiss an appeal. The facts material to the inquiry are that on October 5, 1897, the second day of the regular term of this court next after the appeal was perfected, the appellant filed herein the transcript of the cause, and within twenty days thereafter applied for and obtained, without notice to the adverse party, an extension of twenty days to prepare an abstract of the record, which was filed on November 15, 1897. 1. Counsel for respondent contends that the transcript was not filed within the time prescribed by law. The statute upon this subject provides that, “upon the appeal being perfected, the appellant must, by the second day of the next regular term of the appellate court thereafter, file with the clerk of such court the transcript of the cause, as'provided in this section, and thereafter the appellate court has jurisdiction of the cause, and not otherwise:” Hill’s Ann. Laws, § 541. The point insisted upon assumes that the words “by the second day,” etc., as used in the statute, do not mean on but before the second day of the next regular term, etc., and counsel cite and rely upon the cases of Rankin v. Woodworth, 3 Pen. & W. 48; Miller v. Phillips, 31 Pa. St. 218, and Richardson v. Ford, 14 Ill. 332, which, in effect, hold that a contract to complete work by a certain time means that it shall be done before that time. We do not feel bound to follow the definitions of words as given by other courts, and since the word “by,” as used in Section 541, Hill’s Ann. Laws, has been understood by counsel and treated by this court to mean on the second day, etc., the adoption of such a construction, even in the absence of an adjudication upon the subject, has become the settled policy and rule of practice in this state ; and to change it [309] now could do no good, but must necessarily result in producing incalculable injury to parties appellant who have causes in this court for trial. 2. It is contended that the extension of the time to file the abstract, without notice to the adverse party, is a violation of Rule 4 of this court, which provides that, “within twenty days after the transcript is filed in a civil case, the appellant shall serve upon the attorney for each respondent a printed copy of so much of the record prepared, as hereinafter provided, as may be necessary to a full understanding of the questions presented for decision, and file with the clerk of this court proof of such service together with twelve copies of said abstract, and no case shall be docketed for hearing until this and other rules are complied with, except by order of the court 35 Or. 587, (61 Pac. -). This exception authorizes an extension of time in which to file the abstract, and it has been understood by the bar that, if the time demanded be reasonable, no notice of the application need be given to the adverse party ; but if already extended, or the time asked for be unreasonable, notice must be given to the adverse party, or his consent obtained, before such extension will be allowed. We think the order allowing the additional time was not made in violation of our rules. 3. It is also contended that the abstract was not filed within the extended period. The time allowed expired on November 14, but, as that day was Sunday, the appellant had all of the next day (Hill’s Ann. Laws, § 519); and, having filed the abstract on the fifteenth, it was filed in time, and the motion to dismiss the appeal is overruled. Motion Overruled. For appellant there was a brief over the name of Cake & Cake, with an oral argument by Mr. Wm. M. Cake. For respondent there was a brief and an oral argument by Mr. A. King Wilson.