Central Oregon Irr. Co. v. Whited

142 P. 779, 76 Or. 255

Opinions

Opinion

Per Curiam.

1. Section 554, L. O. L., as amended in 1913 (Laws 1913, p. 618), provides:

“Upon tbe appeal being perfected tbe appellant shall, witbin thirty days thereafter, file with tbe clerk of the appellate court a transcript * * if tbe cause is one on appeal to tbe Supreme Court, which it is provided by law or tbe rules of tbe court shall be submitted at Pendleton, tbe transcript and abstract shall be filed witbin tbe time and in tbe manner herein provided with tbe deputy clerk of tbe court at Pendleton,” etc.

By tbe law in effect at tbe time tbis act was passed appeals from Wasco, Crook and Sherman Counties, unless otherwise stipulated by tbe parties, were directed to be beard at tbe next succeeding term of said court, and tbe transcript was directed to be forwarded to tbe clerk there after tbe appeal was perfected. So tbis was a case to be beard at Pendleton. Sections 896, 897, 898, L. O. L., provide that tbe clerk shall, with tbe consent of tbe court, appoint a deputy at Salem and one at Pendleton, and that tbe clerk shall attend each session of tbe court at Pendleton, unless excused by tbe court. We conclude that tbe legislature did not intend to create tbe deputy clerk at Pendleton an independent officer, or to give him powers denied his principal; neither can we believe there is any substantial difference in the words of the old law, that the transcript shall be forwarded to the clerk at Pendleton, and the words of the new law, that it shall be filed with the clerk at Pendleton. Therefore, we think the decision in Pringle Falls Power Co. v. Patterson, 65 Or. 474 (128 Pac. 820, 132 Pac. 527), is decisive of the motion. In that case we held, when an appellant, within the time limited gives the required notice of appeal, and files a transcript thereon with the clerk of the court, he has complied with the requirements of the statute, whether the copy of that record is left with that officer either at Salem or Pendleton, for when the transcript has been filed, jurisdiction of the cause has been secured, and our clerk can send the copy of the record to the proper place for trial, or the court can make an order to that effect.

Department 2. Statement by Mr. Justice Bean.

This is a suit by the Central Oregon Irrigation Company, a corporation, against Kirk "Whited, to restrain a threatened trespass, and involves the determination of the number of acres of land for which defendant is entitled to water for irrigation under a certain contract. The Circuit Court rendered a decree in favor of defendant, from which plaintiff appeals.

The motion is denied. Denied.