Todd v. Pacific Ry. & Navigation Co.

Decided August 3, 1910. On Motion to Dismiss. [110 Pac. 391.] Opinion Per Curiam. The respondent’s counsel move to dismiss this appeal because of an alleged non-compliance with the rules of this Court. Rule 9 thereof (50 Or. 574: 91 Pac. ix) [250] recommends a form for an abstract in lieu of a transcript, and directs the assignment of errors relied upon to secure a reversal or a modification of the order, judgment, or decree appealed from. The abstract in this cause, which is indexed, contains copies of the complaint, the demurrer and the order overruling it, the judgment rendered upon the defendant’s declining further to plead, the record of the oral notice of appeal, and the undertaking, but does not include any assignment of errors. Statement by Mr. Chief Justice Eakin. This is an action by H. M. Todd against the Pacific Railway & Navigation Company, to recover damages for an injury to plaintiff’s horse. At the time of the alleged injury, defendant was constructing a railroad in Tillamook County, a part of which was a trestle. Plaintiff’s horse was of the alleged value of $125. He permitted it to run at large in the vicinity of the railroad construction, and it went upon the trestle, fell between the timbers, and was thereby injured, from the effects of which it died. It is alleged that defendant negligently and carelessly left the trestle open, exposed, and unfenced, by reason whereof the horse entered thereon. The court overruled a demurrer to the complaint, and, defendant refusing to plead further, judgment was entered for plaintiff. Defendant appeals. [250] The only action of the trial court that can be reviewed is the overruling of the demurrer to the- complaint. An appeal will not be dismissed because the abstract does not contain a formal statement of errors, as required by our rule, when a judgment on the pleadings is brought up for review, and it satisfactorily appears that the alleged error relied upon is the overruling of a demurrer. Neppach v. Jones, 28 Or. 286 (39 Pac. 999: 42 Pac. 519); Medynski v. Theiss, 36 Or. 397 (59 Pac. 871). Errors are required to be assigned in a,n abstract, in order to notify the respondent of the particular act of the trial court to be re-examined on appeal. When only one act of that court can possibly be reviewed, the necessity for setting forth the errors alleged to have been committed is not so apparent, and a failure to comply with the requirement referred to cannot prejudice the adverse party. The motion should be denied; and it is so ordered. Motion to Dismiss Denied.