Chambers v. Everding & Farrell

136 P. 885, 71 Or. 521

• Court: Oregon Supreme Court
• Decided: December 16, 1913
• Status: Published

Opinions

Mr. Justice McNary

delivered the opinion of the court.

This is a motion to dismiss an appeal for alleged nonconformity with certain rules of practice and statutory requirements in respect to the filing of an undertaking. On July 8, 1913, appellant served upon respondents an undertaking on appeal. Four days later, respondents filed exceptions to the sufficiency of the sureties on the undertaking. On the same day, the court made an order setting July 20th as the time in which the sureties should appear and justify. On the 18th day of the month, appellant filed with the clerk and served upon respondents a motion for an order permitting substitution of a new undertaking with the American Surety Company as surety, together with a copy of the undertaking. Supporting the motion was an affidavit of appellant to the effect that the sureties on the original undertaking were residents of an adjoining county engaged in the duties of their employment and for that reason refused to appear before the court and submit to an examination touching their qualifications as sureties; that great diligence had been exercised to procure the attendance of the sureties; and that no means were available to coerce the sureties to present themselves for examination. The day following, the court upon an ex parte hearing entered an order permitting appellant to file the substitute undertaking.

1. Respondents’ counsel urged with much zest that appellant has quite disregarded the provisions of Section 550, subdivisions 2 and 3, L. O. L.:

_ “Within ten days from the giving of notice or service of notice of the appeal, the appellant shall cause to be served on the adverse party or his attorney an undertaking as hereinafter provided, and within said ten days shall file the original of said undertaking, with proof of service indorsed thereon, with said clerk. Within five days after service of said undertaking, the adverse party or his attorney shall except to the sufficiency of the sureties in the undertaking, or he shall be deemed to have waived his right thereto.

‘ ‘ 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. ’ ’

Counsel for appellant suggest a consideration of Section 550, subdivision 4, L. O. L.: “ * * When a party in good faith gives due notice as hereinabove provided of an appeal from a judgment, order, or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, of the appellate court, may permit an amendment or performance of such act on such terms as may be just.” Giving equal effect to the three subdivisions compels us to announce the rule, that, upon a proper showing, the trial court may, with or without a hearing from either side, permit a party appellant to substitute a new undertaking when the original is rendered nugatory by the failure or refusal of the sureties to justify, after exception by respondent, provided no bad faith or misconduct can be charged against appellant. This liberal doctrine is entrenched in the jurisprudence of this state by force of Matlock v. Wheeler, 29 Or. 64 (40 Pac. 5, 43 Pac. 867); Newberg Orchard Assn. v. Osborn, 39 Or. 370 (65 Pac. 81).

2. The enforcement of this legal precept does not infringe upon the right of a respondent to except to the sufficiency of a subsequent undertaking, as that is a statutory right that cannot be abridged or withheld and is open to respondent any time within five days after the service of the substitute undertaking. In the case under consideration, the Circuit Court did not attempt to curtail respondents’ right to except to the sufficiency of the new undertaking, but did make simply an order granting appellant permission to file a new bond on account of the circumstances detailed in appellant’s affidavit. In the case of Simison v. Simison, 9 Or. 335, which counsel for respondents cite, this court held that a party appellant did not possess an inherent right to file a new undertaking in the absence of an order of the Circuit Court permitting the same. The rule there enunciated in no way runs counter to the law of this case, as appellant herein obtained the order from the court, the lack of which was the pitfall in the Simison case. Respondents failed to attack the sufficiency of the substitute undertaking, nor were they deprived of an opportunity thereof, and for that reason cannot now be heard to question the regularity of this appeal merely because appellant obtained an order of the lower court granting permission to file the second undertaking, without a hearing being offered counsel for respondents.

Motion to dismiss is disallowed.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Bakin concur. (143 Pac. 616.)

This is a personal injury action by George Chambers against the Everding & Farrell Company, a corporation, and others, in which judgment was rendered in favor of defendants, and plaintiff appeals. The facts appear in the opinion of the court.

Affirmed. For appellant there was a brief over the names of Mr. Arthur I. Moulton and Mr. Thomas J. Cleeton, with an oral argument by Mr. Moulton. For respondents there was a brief over the names of Mr. Charles W. Fulton, Messrs. Reed & Bell and Mr. Elmer E. Co overt, with oral arguments by Mr. C. A. Bell and Mr. Fulton.

Department 1.