Cantrall v. Sterling Mining Co.

On Motion to Dismiss Appeal. Mr. Justice Burnett delivered the opinion of the court. 1. At the hearing a motion was presented, on behalf of plaintiffs, without argument, to dismiss the appeal, on the ground that the transcript had not been filed within 30 days after the appeal was perfected. This was predicated upon the assumption that the 30 days began to run five days after service of the undertaking on appeal. This would be true if nó exception to the surety on the undertaking had been filed within the five days. The appellant however, having suggested a diminution of the record, the clerk of the circuit court forwarded additional matter that should have been included in the transcript in the first instance, whereby it appears that, exception to the surety was filed. By consent of parties, the justification, of which timely notice had been given, was postponed from time to time, and finally was waived by plaintiffs. The 30 days began to run from the day of this waiver, as that was tantamount to a justification, within the meaning of Section 550, subd. 4, L. O. L. During the 30-day period thus computed, [518] the circuit judge made an order extending the time in which to file the transcript, and it was seasonably filed under the sanction of that order, as contemplated by Section 554, subd. 2, L. O. L. For appellant there was a brief over the names of Messrs. Smith & Beckwith, with an oral argument by Mr. Robert G. Smith. For respondents there was a brief with oral arguments by Mr. Gus Newbury and Mr. William I. Vawter. The motion to dismiss the appeal is overruled. Motion to Dismiss Denied. This is a suit in equity by Andrew Cantrall and A. S. Kleinhammer for an injunction against the Sterling Mining Co., a corporation, to prevent an interference with certain water rights acquired by appropriation by plaintiffs’ grantors in the water of Little Applegate Creek, in Jackson County, Oregon. From a decree in favor of plaintiffs, defendant appeals. Modified, Mr. Justice Burnett delivered the opinion of the court.