Nottingham v. McKendrick

Per Curiam. The appellants filed their notice of appeal and undertaking on September 27, 1898, and the transcript on October 4, 1898, — the second day of .the term. On the first day of October exceptions were taken to the sufficiency of the surety on the undertaking, and on the seventeenth he [497] appeared before the clerk of the court below for the purpose of justifying; but that officer found he was unable to justify, and at once notified the appellants, who- thereupon, on the fourth day of November, filed a new undertaking, but without notice to- respondents. On March 29, 1899, respondents served a motion to dismiss the appeal on appellants, and filed it the next day with the clerk of this court. The motion assigns as reasons for the dismissal, among others, that the transcript of the cause was filed before the appeal was perfected, that no appeal has ever been perfected, and that the appellants did not file an abstract of the record within twenty days after the filing of the transcript, as required by rule 4 (37 Pac. vi.), or obtain an extension of time therefor. On April 17, 1899, when the motion was brought on for hearing, the appellants served notice upon the respondents that they would move the court for an order permitting them to file a new undertaking. 1. The transcript having been filed before the appeal was perfected, the cause might have been stricken from the October docket, but not dismissed: Chemin v. East Portland, 19 Or. 512 (24 Pac. 1038). 2. „ It has been permitted to remain upon the calendar, however, although the transcript has not been refiled, and it should now be considered as properly upon the March docket. 3. It seems, by the efforts made to- file and complete a proper undertaking, that the appellants have, in good faith, been fairly diligent in their purpose to perfect the appeal according to law; and under the rule established by Matlock v. Wheeler, 29 Or. 64 (40 Pac. 5, and 43 Pac. 867), and by Mendenhall v. Elwert, 36 Or. 375 (52 Pac. 22), they should be permitted to file the perfected undertaking now. 4. The next question is touching the abstract. Counsel for appellants, claiming to have misunderstood the -rule relating thereto, announced at the argument of the motion his [498] willingness and purpose to filé an abstract in compliance with any order the court might make respecting it. While there seems to have been some dereliction in the matter, we are inclined to relieve the appellants from the default. The rules of the court, as was said in Neppach v. Jones, 28 Or. 286, 289 (42 Pac. 519), “were designed and intended to facilitate the business and simplify the practice, and are not so arbitrary or inflexible as to work an injustice, or prevent a hearing in this court when the failure to comply therewith is owing to the excusable neglect of the party.” It should, however, be understood that they will be substantially enforced, and that parties appealing will be required to conform thereto in all material respects. Considering that the cause came regularly on the March docket, appellants were only two days in default when the motion: to dismiss was served upon them; and, the delay not resulting in any material injury to the respondents, the motion will be overruled: Fleischner v. Bank of McMinnville, 36 Or. 553 (54 Pac. 884). The appellants may file the new undertaking now, and they will be required to serve and file a printed abstract of the record within five days from this date. Motion Overruled.