McCann v. Burns

Mr. Justice McNary delivered the opinion of the court. 1. This is a motion to dismiss an appeal for the reason the same was not taken within 60 days from June 3, 1913. The facts giving force -to the motion are these: On January 29, 1913, Margaret Burns obtained a judgment against appellants in the Circuit Court for Multnomah County, Oregon. On February 12, 1913, [169] she died. On September 22, 1913, upon the application of D. R. McCann, executor of the last will of decedent, the Circuit Court made an order substituting McCann as plaintiff. On September 25, 1913, appellants caused a notice of and undertaking on appeal to be served on the substituted plaintiff. Section 38, L. O. L., reads: “No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representatives or successors in interest.” In considering that statutory provision, this court has held that a suit or action is held in abeyance during the time intervening between the death of the party and the order allowing his representatives to continue the proceedings, and that this period is not to be deemed any part of the time limited for taking an appeal: Dick v. Kendall, 6 Or. 166; McBride v. Northern Pacific Ry. Co., 19 Or. 65 (23 Pac. 814); Stivers v. Byrkett, 56 Or. 565 (108 Pac. 1014, 109 Pac. 386). Section 550, L. O. L., subdivision 5, as amended by Chapter 319, General Laws of Oregon for 1913, provides: “An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, or at the time of making the interlocu tory order appealed from, shall be taken by serving and filing the notice of appeal, within sixty (60) days from the entry of the judgment, order or decree appealed from or to the Circuit Court within thirty (30) days after such entry and not otherwise; provided, that in all cases where the right to an appeal to the Supreme Court shall exist at the time this act shall [170] come into force, the time for taking such appeal is hereby extended for the period of sixty (60) days thereafter. ’ ’ This legislative enactment became effective June 3,1913, and 60 days thereafter ended at midnight August 2, 1913. Counsel for respondent’s position is that appellants, not having perfected their appeal until September 25, 1913, are without the statute, for the reason the amendatory act states expressly that in all cases where the right to appeal existed at the time the act became operative, it shall expire 60 days thereafter or at midnight August 2, 1913. Doubtlessly, that construction of the statute would be correct, if it were not for Section 38 supra, which suspended the action for that quantity of time between the death of Margaret Burns and the order allowing the substitution of McCann as executor, and during which period there was no one in esse upon whom service could have been made, and consequently no right of appeal existed. 2. The word “right” in this connection means a privilege, that is, a prerogative to take an appeal; therefore appellants’ right of appeal did not inure until the day the Circuit Court made the order of substitution, and continued by force of the statute until 60 days thereafter. Counsel for respondent intimate that there is another appeal pending in this court from the same judgment. The record shows that an ineffectual attempt was made to appeal prior to the order of substitution; but, on account thereof, the attempt was void, and this court did not acquire jurisdiction. Motion to dismiss is overruled. Motion Overruled.