Byers v. Cook

Oregon Supreme Court

Byers v. Cook

10 P. 417, 13 Or. 297, 1886 Ore. LEXIS 20

CourtOregon Supreme Court

DecidedMarch 24, 1886

StatusPublished

Cited by1 cases

This text of 10 P. 417 (Byers v. Cook) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Byers v. Cook, 10 P. 417, 13 Or. 297, 1886 Ore. LEXIS 20 (Or. 1886).

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Opinion

By the Court.

The first, second, third, and fifth grounds of the motion are so general that they cannot be considered.

The fourth one is to the effect that the notice of appeal was not served upon the respondent’s attorney; and the ■sixth one that the undertaking was signed, and the affidavit of the surety taken, prematurely. Neither of these grounds, in the opinion of the court, is tenable. The undertaking was not intended to nor had any effect until filed. (State v. Young, 23 Minn. 551.) It was prepared and signed with a view, no doubt, to be used in perfecting the appeal; and so long as it was prepared after the judgment was rendered, and not filed until the notice of appeal was filed, it was valid and binding. The law will not concern itself about such trifles. It looks to the [300]*300substance, and not to the form, in sucb matters. It' would have been more exact, perhaps, to have waited until after the notice of appeal was served before preparing the undertaking, but it was no such error or defect as could have affected the substantial rights of the respondent.

The other point of the motion referred to is groundless. The appellant did not need to serve the notice of appeal upon the attorney, Jolly. His having .appeared for the respondent before the justice did not substitute him' for the respondent. When an attorney is employed by a party to an action in a court of record, and gives notice of his retainer, he stands in the place, .stead, or turn of the party, and should be served with all subsequent papers in the action, where they are not specially required or directed by the statute to be served upon the party; but that rule does not apply to a person who acts as an attorney for another in a Justice’s Court. In the latter case, he acts more as counsel; and his authority is. limited to the matters that transpire there. In the one case, he acts as attorney for the party (Justice’s Code, sec. 123); in the other, he “appears for and represents, the party” “in the written proceedings in the action.” (Civil Code, sec. 1000.) There is evidently nothing in that point.

We think the court erred in dismissing the appeal, and that the judgment appealed from should be reversed, and the action be reinstated upon the calendar of fhe circuit court; and it is só ordered.

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By the Court.

The first, second, third, and fifth grounds of the motion are so general that they cannot be considered.

The fourth one is to the effect that the notice of appeal was not served upon the respondent’s attorney; and the ■sixth one that the undertaking was signed, and the affidavit of the surety taken, prematurely. Neither of these grounds, in the opinion of the court, is tenable. The undertaking was not intended to nor had any effect until filed. (State v. Young, 23 Minn. 551.) It was prepared and signed with a view, no doubt, to be used in perfecting the appeal; and so long as it was prepared after the judgment was rendered, and not filed until the notice of appeal was filed, it was valid and binding. The law will not concern itself about such trifles. It looks to the [300]*300substance, and not to the form, in sucb matters. It' would have been more exact, perhaps, to have waited until after the notice of appeal was served before preparing the undertaking, but it was no such error or defect as could have affected the substantial rights of the respondent.

The other point of the motion referred to is groundless. The appellant did not need to serve the notice of appeal upon the attorney, Jolly. His having .appeared for the respondent before the justice did not substitute him' for the respondent. When an attorney is employed by a party to an action in a court of record, and gives notice of his retainer, he stands in the place, .stead, or turn of the party, and should be served with all subsequent papers in the action, where they are not specially required or directed by the statute to be served upon the party; but that rule does not apply to a person who acts as an attorney for another in a Justice’s Court. In the latter case, he acts more as counsel; and his authority is. limited to the matters that transpire there. In the one case, he acts as attorney for the party (Justice’s Code, sec. 123); in the other, he “appears for and represents, the party” “in the written proceedings in the action.” (Civil Code, sec. 1000.) There is evidently nothing in that point.

We think the court erred in dismissing the appeal, and that the judgment appealed from should be reversed, and the action be reinstated upon the calendar of fhe circuit court; and it is só ordered.

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10 P. 417, 13 Or. 297, 1886 Ore. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byers-v-cook-or-1886.

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