Tucker v. Nuding

BEAN, J. 1. A preliminary question is submitted by a motion of defendant to dismiss this appeal for the reason that the notice of appeal does not describe the decree appealed from. The notice of appeal contains the name of the court, the name of the parties plaintiff and defendant, following this it is directed to the defendant and his attorney and notifies them that the plaintiff appeals “to the Supreme Court of the State of Oregon, from the decree in the above-entitled suit, rendered by the above-named court on March 23, 1918, and from the whole of said decree.” The record discloses that the decree appealed from was rendered in the suit named on the date mentioned in the notice of appeal. It does not appear from the record that there was any other judgment or decree passed by the trial court on the date named or at any other time, so that there was no possibility of the de 324 fendant’s being misled as to the decree appealed from or any chance for a mistake as to the description of the decree contained in the notice. It is submitted by defendant that neither the notice, nor the undertaking on appeal states in whose favor the decree was rendered. A notice of appeal -which gives the name of the court and of the parties to the suit, the date of the judgment or decree without any other description, and informs the respondent that the appellant appeals from the judgment or decree in the suit is sufficient: Section 550, subd. 1, L. O. L.; Ream v. Howard, 19 Or. 491 (24 Pac. 913); Fraley v. Hoban, 69 Or. 180 (133 Pac. 1190, 137 Pac. 751). In construing the section of the statute above referred to, it has been repeatedly held by this court that such notice is sufficient if it describe with reasonable certainty the decree complained of, the court in and the time at which such decree was given, the names of the parties to the suit, and the fact that one or more of them intend to appeal to the Supreme Court: Mendenhall v. Elwert, 36 Or. 375, 379 (52 Pac. 22, 59 Pac. 805), and cases there cited. Tested by the above statute and the rule enunciated by this court, the notice of appeal in this suit describes the decree complained of with reasonable certainty, and conforms to the other requirements prescribed by the decisions of this court, and is sufficient. The motion to dismiss the appeal is therefore overruled.