The case was tried in Multnomah County and the appellants served and filed an undertaking signed by sureties who lived in Deschutes County and obtained an ex parte order authorizing the justification of the sureties at Bend, Deschutes County, and directing the clerk to transmit the undertaking to the clerk of the Circuit Court of Deschutes County for justification there. The respondents moved the court to set aside' said order and require the sureties to justify in Multnomah County, but this was refused.
Subdivision 3 of Section 550, Or. L., provides:
“The qualifications of sureties in the undertaking on appeal shall be the same as in bail on arrest, and, if excepted to, they shall justify in like manner.”
Section 268, Or. L., relating to bail on arrest, provides that the sureties upon an undertaking of bail may justify before a “judge of the Circuit Court or County Court or clerk of the court where the action is pending, at a specified time and place.” The construction of this clause and its application to cases
[582] of undertaking on appeal are not without difficulties, and possible hardships may result from any construction suggested on the arguments of respective counsel.
Counsel for respondents argue that to hold that a defeated suitor may, after having lost his case, put the successful party to still further trouble and expense by fixing the place for the justification of the sureties in a county remote from where the suit was tried, would work a great injustice and inconvenience by requiring the successful litigant to go to the place designated for the justification in order to cross-examine the sureties as to their qualifications, while the attorney for appellants argues that in the present instance the appellants are comparatively unacquainted in Portland and consequently unable to obtain sureties there, although they are well acquainted at Bend, where they formerly resided, and are consequently able to find friends there to go upon their undertaking. After a careful examination of the statute we are of the opinion that its intent is to require the justification before a judge or clerk of the court in which the action is pending. Such has been the holding in California upon a similar statute: Roush v. Van Hagen, 18 Cal. 668.
The right to appeal is not constitutional, but is a privilege given by. statute, and the party exercising it must do so subject to such burdens as the law has seen fit to impose. As this precise question has not been raised in this court in any case preceding this, we are disposed to adopt a conservative course in order to avoid the hardship which might result from a dismissal of the appeal. The appellants will be permitted to file here a new undertaking properly justified before a judge of the Circuit Court of Mult
[583] nomah County or the clerk of said court within thirty days after the rendition of this opinion. In default of such undertaking the appeal will be dismissed. Motion Overruled.
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