Carter v. Simpson Estate Co.

McBBIDE, C. J. 1. The first ground assigned does not appear to be well taken. The transcript on appeal was filed here on October 4, 1920, and according to rule 6 of this court (89 Or. 712 [173 Pac. 8]), it became the duty of the appellant within twenty days thereafter to prepare and serve his printed abstract, arid within five days after such service to file in this court sixteen copies' thereof, accompanied by proof of service. By stipulation of the parties, the appellant was granted by this court additional time to “prepare and serve” on respondent an abstract, such time to extend to and include November 6, 1920. Nothing is said in the order as to the time of filing here, and a fair construction of the rule would leave appellant five days after November 6th within which to file the required number of copies of the abstract with the clerk of this court. Such copies were filed here on November 9, 1920, and were within time. 2. Another objection is that there is no index to the abstract, and this is admitted. But in extenuation of this omission appellant sets forth in an affidavit by his attorney the following: “In reference to an index to said abstract, will say that the printer of the local paper at Myrtle Point, [386] Oregon, has had little experience in preparing and printing abstracts; that I gave him for a copy an abstract in another case, which was indexed according to rules of the Supreme Court, but in his rush at the last hour he neglected to prepare and insert in said abstract an index, and in my anxiety to get the same served on time I overlooked the index, having in mind at the time the rule (rule 10 [173 Pac. 9]) with reference to a brief, which does not require an index if the printed matter does not cover twenty pages; that appellant is ready and willing to have printed, and will insert in the abstracts served and filed, an index thereto.”. As this omission has not in any way delayed the case, and appellant has asked leave to file such printed index, we feel justified in excusing the omission, and he will be permitted to file it. 3. No exhibits are printed in the abstract, and the necessity for printing a reference to the page where they may be found in the transcript is not apparent. Following page 1 of the transcript of testimony is a complete index to all of the exhibits. We think that the requirements of rule 5 (89 Or. 711 [173 Pac. 8]) have thus been substantially complied with. 4. The remedy for imperfection or unfairness in the appellant’s abstract is found in rule 7 (89 Or. 712 [173 Pac. 8]), which provides in substance that if respondent deems such abstract imperfect or unfair, he may within ten days after receiving a copy thereof deliver to appellant’s counsel and to the clerk of this court sixteen copies of such further or additional abstract as he shall deem necessary to a full understanding of the questions involved in the appeal. 5. The objection that the abstract does not sufficiently set forth-the errors relied upon in the appeal is covered by rule 12 (89 Or. 717 [173 Pac. 10]), which provides that this court will not examine or consider [387] errors not assigned in the abstract, except those going to the jurisdiction of the court or the sufficiency of the action. The motion to dismiss will be overruled, upon the condition that appellant shall within ten days from the date of this opinion serve upon defendant’s attorneys a copy of the index tendered in the affidavit and motion for leave so to file, and shall within such time file with the clerk of this court the requisite number of such copies. Failure to comply with this condition will result in a dismissal of the appeal. Overruled Conditionally.