Robinson v. Phegley

McBRIDE, C. J. This is a motion to dismiss an appeal. The grounds assigned are: (1st) That the transcript was not filed within the time prescribed by statute, or within any extension of that time; (2d) That the notice of appeal is signed by the appealing party and not by her attorney, and (3d) That the notice of appeal does not sufficiently describe the judgment. On the face of the transcript it appears that after perfecting her appeal plaintiff secured two orders extending the time to file the transcript. The first order granted an extension of fifty days, and before this time elapsed another order was made extending the time until November 1, 1918. It further appears from the transcript that an order further extending the time and dated October 15th was filed and entered on November 7th, the date of such filing being not within any extension theretofore granted. It is [301] claimed that the failure to file the order dated October 15th, before the expiration of the time granted by the previous order, deprives this court of jurisdiction. By Section 554, subdivision 2, L. O. L., it is provided that the time may be extended by an order of the court or judge thereof, but that such order must be made within the time allowed to file the transcript. Section 534 defines an order as follows: ‘ ‘ Every direction of a court made or entered in writing and not included in a judgment or decree is denominated an order.” 1, 2. Clearly the order is made when it is in writing and signed by the judge, but in our opinion it is not effective until delivered to the clerk. There is no provision of the statute requiring the entry of orders of this character in the journal and the practice in that respect varies in different districts of this state. The appellant has filed here the affidavit of the presiding judge that he signed the order on the 15th of October, as the date indicates. There is also an affidavit of J. M. Bogers, a deputy county clerk, to the effect that the order was made and signed by the judge of the Circuit Court on October 15, 1918, and delivered by the judge to him and by him entered and recorded in the record of orders and was thereafter delivered to another deputy clerk for manual copying in the journal of the court. We think this was a sufficient filing. The order was actually in the record with the intent that it should be effective and the filing of a paper is not merely the indorsement which the clerk makes upon it, but the fact that it is placed in his custody with the intent to make it effective. The affidavits of the judge and deputy clerk being uncontradicted, we shall treat the order as having [302] been properly made. They amount to an official certification of what was actually done and explain the apparent discrepancy between the date of the order and its entry on the journal. 3. The objection that the notice of appeal is signed by the party instead of the attorney is not well taken. Under the statute, as it existed prior to 1899, it was held in Poppleton v. Nelson, 10 Or. 437, that a notice signed by a party who had an attorney of record was insufficient. The statute then in force (Section 527, Deady & Lane Code) provided that “the appellant shall cause a notice to be served on the adverse party,”-etc. By Gen. Laws, 1899, pp. 227, 228, this section is amended so as to read, “The party desiring to appeal may cause a notice signed by himself or attorney to be served upon the adverse party,” etc. There can be no question but that this amendment authorizes the party appealing to sign the notice. It was probably passed to avoid the somewhat strained construction given to the former statute in Poppleton v. Nelson, 10 Or. 437, which had already been criticised by Justice Thayer in Shirley v. Burch, 16 Or. 1 (18 Pac. 344). 4. We think the notice sufficiently describes the decree appealed from. The notice states the title of the cause; is directed to the defendant and his attorneys, and reads as follows: “You are hereby notified that the plaintiff appeals to the Supreme Court of the State of Oregon from the decree entered in the above-entitled court and cause on the 19th day of April, 1918, and that such appeal is from the whole of said decree and each part thereof. “(Signed) Emma G. Robinson, Plaintiff.” Here it will be seen that the appeal is from a decree of the Circuit Court of Multnomah County, in a cause [303] in which the appellant was plaintiff and respondent was defendant, an<l which decree was rendered on April 19, 1918. It would he difficult to make the description more specific without including much useless detail. This court has always been averse to dismissing appeals on account of mere technical defects in the notice, where it has been evident that no one could be misled by a slight defect or omission. A notice almost identical in terms with that here discussed was held sufficient in Fraley v. Hoban, 69 Or. 180 (133 Pac. 1190, 137 Pac. 751). ' Mr. Ralph A. Coon and Mr. G. A. Sheppard, for the motion. Mr. Wilson T. Hume, contra. The motion to dismiss the appeal is overruled. Overruled. Overruled February 25, 1919. Second Motion to Dismiss. (178 Pac. 799.) PEE CUEIAM. Defendant moves to dismiss the appeal for the reason that the abstract filecl by.appellant does not contain an assignment of errors, as required by Eules 11 and 12 of this court: 89 Or. 715-717 (165 Pac. 8). Appellant’s attorney files a counter notice for leave to file an amendment to the abstract, specifying, the errors relied upon, and files an affidavit showing that the time, within which to file an abstract, was short when he came into the case and that through haste he omitted to include a specification of errors therein. The failure to furnish a specification of errors is not jurisdictional, and it is plain that such [304] omission has not worked any disadvantage to respondent. In Banc. The third amended complaint was filed on August 2, 1916, in which the plaintiff prayed for judgment against the defendant for the sum of $34,345.43, with accrued interest from June 11, 1907, “and for such other, further and different relief to which plaintiff may be entitled and which to equity may seem meet.” To this complaint a demurrer was sustained by the trial court and the plaintiff appealed to this court, where the case was “reversed and remanded with directions” in an opinion by Mr. Justice MgCamant, 84 Or. 124 (163 Pac. 1166). By that opinion it was decided that the plaintiff did not have any cause of suit against the defendant, except as to the $6,000 mortgage described in her complaint, which had been foreclosed'by the decree of the Circuit Court for Josephine County. As to that mortgage, the complaint alleges that in the year 1907 the G-alice Consolidated Mines Company was an Oregon corporation and the owner of valuable mining property in this state; that the plaintiff was then a stockholder and had an investment of more than $15,000 therein: [304] Under all the circumstances we think it would not be in the interests of justice to dismiss this appeal for a mere technical failure to comply with the rules. The plaintiff will be permitted to amend the abstract and the motion to dismiss will be overruled. Overruled.