Fleischner v. Bank of McMinnville

Decided 24 October, 1898. On Motion to Dismiss Appeal. [54 Pac. 884.1 Per Curiam. 1. This is a motion to dismiss the appeal for the reason that appellants have failed to specify the grounds of error relied upon for the reversal or modification of the decree appealed from, as required by Rules 4, 9 (24 Or. 595). The abstract was served and filed August 10 last, and respondents subsequently procured an extension of time within which to prepare and file their briefs, but before the extended period had expii'ed filed the motion in question to dismiss. When the matter was brought on for hearing, the counsel for appellants moved in open court for leave to amend the abstract by appending the assignments to error upon which the appellants intended to rely, and stated that the assignments had been omitted by oversight upon his part. A formal written motion, based upon affidavit, showing facts excusing the omission, is the usual and better practice. But the question presented is not jurisdictional, and the abstract being required in certain form, and containing certain matter for the benefit and assistance of the court, and to relieve it as much as possible from the labor of searching in many instances through cumbersome records, and to enable it to ascertain at a glance the errors relied upon, it may, under certain contingencies, be excused entirely, or the court may dismiss the cause for nonobservance of requirements touching it. Nevertheless all parties who can reasonably comply with the rules governing its preparation and service should be required to conform to them. The technical rule adopted in Cross v. Chichester, [556] 4 Or. 114, and followed in State v. McKinmore, 8 Or. 207, requiring a party, who is desirous of perfecting his appeal by filing a new or amended undertaking, to make his application or file his motion for leave therefor before the motion to dismiss is brought on for hearing, has never been adopted or followed in so far as it concerns a compliance with the rules of the court. Indeed, it is doubtful if the rule otherwise obtains at this time : Mendenhall v. Elwert, 36 Or. 375 (52 Pac. 22). We are disposed to grant the leave to amend under the conditions recited, as the respondents have not been materially delayed or injured by the oversight of appellants’ counsel, and the order will be made permitting the appellants to amend their abstract by appending thereto the assignments of error to be relied upon within five days from this date ; respondents to have twenty days thereafter within which to file their briefs. Motion Overruled.