Wagner v. Portland

On Motion to Dismiss Appeal. Per Curiam. This is a motion to dismiss tbe appeal herein for two reasons: First, tbe abstract of record contains no assignment of errors relied upon for a reversal of tbe case; — 391 — and, second, appellant has not filed its brief within the time required by the rules of this court. ' 1. The procedure on appeal has been materially amended by the late act of the legislative assembly.: Laws, 1899, p. 227. A party may now appeal by giving notice in open court, or before the judge thereof at chambers, at the time of the rendition of the order, judgment, or decree, that he appeals therefrom, or from some specified part thereof; or, if not taken at the time, he may. appeal by causing a notice signed by himself or attorney to be served on the adverse party or parties that have appeared in the action, and such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party, or his attorney, that an appeal is taken to the higher court (designating it) from the judgment, order, or decree, or some specified part thereof. It will be observed that it is not necessary to specify or assign errors in the notice of appeal, as was formerly the ease. The rules of the court were adopted in view of the old law, and hence, under rule 9 (24 Or. 599, 37 Pac. vii.), it is prescribed that, if the appeal is from a judgment in an action, the appellant shall set out in his abstract of record those assignments of error in the notice of appeal on which he intends to rely, and none other. As the law now requires no assignments of error in the notice of appeal, it is urged that under rule 9 no statement of errors in the abstract is necessary, and that rule 10 (37 Pac. viii.), providing that where an abstract has been served no question appearing upon the record will be examined or considered on the hearing in this court except such as may arise upon the assignments of error contained in the printed abstract, is thereby rendered nugatory, in so far as it may pertain to actions at law. There is much force in the contention, for, under the present law, at least, it is not clear what assignments of error in law eases must be set out in the abstract. The appellant should, therefore, in the interest of justice, have the benefit of the doubt, and be allowed to amend its abstract by serving and filing assignments of error within ten days. This is the first time that our attention — 392 — has been called to the want of clearness in the rules in this regard since'the amendatory act of 1899, and the necessary amendments are now being considered, and will be promulgated at an early day. Decided 20 January, 1902. For appellant there was a brief over the names of Joel M. Long, city attorney, and Ralph R. Duniway, with an oral argument by Mr. Long. For respondent there was a brief over the name of O’Day & Tarpley, with an oral argument by Mr. Thos. O’Day. 2. As it pertains to the second reason for dismissal, it appears that appellant’s brief was filed a few days after the expiration of an extended time for filing same. In this appellant is in default, but it is not vital to the jurisdiction of the court. The delay was caused by sickness of counsel, and appellant will be relieved of the default, and the brief allowed to stand as filed. The motion will therefore be overruled. Motion Overruled.