Columbia City Land Co. v. Buhl

Mr. Justice Moore delivered the opinion of the court. This is a motion to dismiss an appeal. A decree was rendered in this cause December 18, 1912, establishing a boundary between contiguous lands of the parties hereto, and appointing commissioners to mark upon the ground the dividing line thus ascertained. Desiring to review such determination, the plaintiff on June 2, 1913, caused to be served and filed a notice of appeal but did not serve or file an undertaking therefor until the 13th of that month. Attempting to abandon the experiment undertaken to secure a reversal of the decree, the plaintiff on June 21, 1913, caused to be served and filed another notice of appeal and an undertaking thereon. The transcript having been filed with our clerk, this motion was interposed, based on the grounds, inter alia, that the order appealed from is not final, and that the attempt to take a second appeal was not made until after the expiration of the time prescribed. 1. Considering these reasons in the order stated, the decree complained of ascertained the location of [249] the boundary by course and distance from a given point, and left to the commissioners the exercise of no discretion or judgment, but required of them the performance of a ministerial duty only, by indicating, by proper monuments, where the dividing line was thus ascertained to be. The decree sought to be reviewed was a final determination of the issues involved, within •the meaning of Section 548, L. O. L.: Marquam v. Ross, 47 Or. 374 (78 Pac. 698, 83 Pac. 852, 86 Pac. 1). 2. No appeal in this cause having been taken when the decree was rendered, six months from the entry thereof were originally allowed in which to take an appeal: Section 550, subd. 5, L. O. L. This statute was amended by abridging the six months, thus permitted to initiate a review of a judgment or decree, to 60 days; Laws Or. 1913, c. 319. The amendment referred to contains a clause as follows: “Provided, that in all cases where the right to an appeal to the Supreme Court shall exist at the time this act shall come into force, the time for taking such appeal is hereby extended for the period of sixty (60) days thereafter.” This later enactment contained no emergency clause, and took effect 90 days from the end of the session at which it was passed: Article IY, Section 28, of the Constitution. The session of the legislative assembly at which the amendment was passed ended March 4, 1913 (Laws Or. 1913, p. 866), and hence the act went into effect June 3d following. It is argued by defendant’s counsel that as the first notice of appeal was served and filed prior to June 3, 1913, and as the attempt to abandon such undertaking to review the decree was not made until June 21,1913, the right to appeal did not exist when the amendment referred to took effect, and hence the enactment did not extend the time for taking the appeal, which limit [250] expired six months after the entry of the decree, or on June 18, 1913. An appeal is taken by a party to a judgment or decree by giving in open court, at the time the determination is entered, an oral notice of appeal, or by serving upon the adverse party or his attorney, and filing with the clerk of the trial court at any time within six months from the entry of the decree or judgment, a written notice of appeal. An appeal is perfected by serving and filing, within 10 days from the giving of such notice, an undertaking on appeal. The adverse party is allowed five days within which to except to the sufficiency of the sureties on the undertaking: “From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof if excepted to, the appeal shall be deemed perfected”: Section 550, L. O. L. 3. Where a party to a judgment or decree has taken and perfected an appeal, his right to have the determination of the trial court reviewed is exhausted, and he cannot thereafter take another appeal in the same cause: Schmeer v. Schmeer, 16 Or. 243 (17 Pac. 864); McCarty v. Wintler, 17 Or. 391 (21 Pac. 195); Nestucca Wagon Road Co. v. Landingham, 24 Or. 439 (33 Pac. 983); Harrington v. Snyder, 53 Or. 573 (101 Pae. 392); Hanley v. Stewart, 54 Or. 38 (102 Pac. 2); Moon v. Richelderfer, 56 Or. 246 (108 Pac. 178). 4. Where, however, such party attempts to appeal, but in consequence of some irregularity the appeal is not perfected, the endeavor to have the decree or judgment reviewed may he abandond, since the right to appeal still remains: Holladay v. Elliott, 7 Or. 483; Van Auken v. Dammeier, 27 Or. 150 (40 Pac. 89); Newberg Orchard Assn. v. Osborn, 39 Or. 370 (65 Pac. 81); Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997); Fisher v. Tomlinson, 40 Or. 111 (60 Pac. [251] 390, 66 Pac. 696); In re Skinner’s Will, 40 Or. 571 (62 Pac. 523, 67 Pac. 951). In the case at bar as the first undertaking was not filed within the time limited, the appeal was not perfected, whereupon plaintiff’s counsel properly abandoned the attempt and took another appeal, and “the right to an appeal to the Supreme Court” within the meaning of the amendment of February 28, 1913, existed until the latter effort to appeal was perfected; the extension granted by the statute not haying elasped in the meantime. It follows that the motion should be denied, and it is so ordered. • Motion Denied. Me. Chief Justice McBeide took no part in the consideration of this motion.