Summers v. Geer

On Motion to Dismiss the Appeal. Per Curiam: This is a motion to dismiss an appeal. The notice of appeal, by referring to the first page of the transcript for the title and names of the parties, is as follows: “In the Circuit Court of the State of Oregon for the County of Marion. Department No. 1. George Summers, Plaintiff, v. T. T. Geer, L. B. Geer, and W. H. Odell, Defendants. To T. T. Geer and to George G. Bingham, Your Attorney of Becord, and to L. B. Geer and to George G. Bingham, Your Attorney, and to W. H. Odell and to A. 0. Condit and John W. Beynolds, Your Attorneys of Becord, in the Above-Entitled Action:» You and each of you are hereby notified, and you will hereby please take notice that the plaintiff, George Summers, hereby appeals to the Supreme Court of the State of Oregon from that certain judgment made, rendered and entered of record in the above-entitled court on the 10th day of July, 1905, at page 405, of Book 24, Judgment Docket for Marion County, Or., wherein and whereby it was ordered and adjudged substantially as follows: Now on this 10th day of July, 1905, this cause coming on to be heard, plaintiff appearing by M. E. Pogue, his attorney, and the defendant T. T. Geer appearing by George G. Bingham, his attorney, and the defendant L. B. Geer appearing by George G. Bingham, his attorney, and the defendant W. H. Odell appearing by A. O. Condit and John W. Beynolds, his attorneys, and now at this time the plaintiff, by M. E. Pogue, his attorney, announcing to the court that he did not desire to [252] file a second amended complaint, and that lie was satisfied with and could stand'on his first amended complaint, and the defendants by their attorneys now move the court for a judgment of dismissal for the failure on the part of plaintiff to file a second amended complaint, and it appearing to the court that the defendants’ motion should be allowed, it is therefore ordered and adjudged that plaintiff’s action be, and the same is, hereby dismissed, and that the defendants each recover of and from the plaintiff their costs and disbursements herein expended and taxed and allowed at $46.00’—and from the whole and every part of said judgment. M. B. Pogue, Attorney for Plaintiff.” 1. When the notice of appeal is not given in open court, its adequacy is tested by the following rule: “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 supreme or circuit court, as the case may be, from the judgment, order, or decree, or some specified part thereof”: Section 549, JB. & C. Comp. As all judgments of the circuit court are required to be recorded in the journal (Id. Section 196), which is a book in which the clerk must enter the proceedings of the court in term time (Id. Section 583), the reference in the notice of appeal to the entry o'f the judgment in the “Judgment Docket” is probably a misdescription of the record intended and all allusion to it may be disregarded as surplusage. '2. It is not stated that the George Summers mentioned in the notice of appeal is the plaintiff in this ’action. This defect is not fatal for certainty to a common intent in general (5 Am. & Eng. Ene. Law, 2 ed., 799) is the degree of indubitableness required which permits invoking the presumption, that the identity of a person may be established from the identity of name; Section 788, subd. 25, B. & C. Comp. , 3. The omission from the notice of the words “and cause” after the phrase “in the above-entitled court” creates a doubt as to whether the judgment complained of was rendered in the case at bar. So, too, the word “substantially,” used to qualify the verbs “ordered” and “adjudged,” makes uncertain what purports to be the judgment attempted to be reviewed, although [253] the language employed is designated by quotation marks. “The punctuation of an instrument,” says Mr. Tiffany (17 Am. & Eng. Enc. Law, 2 ed., 20), “may be considered when the meaning is doubtful.” By rejecting the repugnant words mentioned and applying the rules of construction specified, the notice of appeal assailed comes within the very liberal provisions of the statute regulating its sufficiency. Decided 17 December, 1907. 93 Pac. 133. For appellant there was a brief and an oral argument by Mr. Myron E. Rogue. For respondent there was a brief over the names of Mr. George G. Bingham, Mr. John W. Reynolds and Mr. Alva 0. Gondit, with oral arguments by Mr. Bingham and Mr. Reynolds. The motion should therefore be denied, and it is so ordered. Motion Overruled.