Opinion
Per Curiam.
1. In this case the notice of appeal, with proof of service thereof indorse thereon, together with the undertaking on appeal, was filed in the circuit court on February 8, 1911. No exceptions to the sufficiency of the sureties having been made within five days thereafter, as provided by Section 550, subd. 2, L. O. L., the appeal was perfected from and after February 13, 1911. “From the expiration of the time allowed to except to the sureties in the undertaking or from the justification thereof, if excepted to, the appeal shall be deemed perfected.” Section 550, subd. 4, L. O. L. Rule 37, governing the practice in this court (50 Or. 589:91 Pac. xiii) requires that, “in cases for hearing at Pendleton, the appellant, except in equity cases to be tried anew, must serve a brief containing a concise statement of the errors relied upon, within thirty days after the appeal is perfected.” Under this rule the brief of the appellant was due to be filed on or before March 15, 1911; but it was not filed until May 2d of that year. On the same day the respondent, claim[597]*597ing by an unverified statement in his motion that until that time he had no notice that the brief had not been filed, moved to dismiss the appeal. Although this motion was served on counsel for appellant at the time of filing, no opposition to it was made in any way for more than 10 days thereafter, and on July 5, 1911, there still being no opposing paper presented to the court, an order was entered dismissing the appeal. Rule 14 (50 Or. 579: 91 Pac. x); Commercial National Bank v. Temple, 56 Or. 543 (109 Pac. 129); State v. Horn, 39 Or. 152 (65 Pac. 1066); Shafer v. Beecher, 54 Or. 273 (101 Pac. 899); Smith v. Smith, 55 Or. 128 (105 Pac. 706).
This action of the court is justified, not only by the precedents above cited, but also by rule 20 (50 Or. 581: 91 Pac. xi), as amended and adopted October 5, 1909, reading thus:
“All motions and papers supplemental or opposed thereto must be filed with the clerk and served on the opposite party or his counsel, who, within ten days from such service, is required to file and serve an answering paper on the moving party or his counsel, or he shall be deemed to have confessed the motion. The moving party, after being served with an answering paper, may, within five days, serve and file a reply. All motions must be filed within ten days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction.”
For failure of the appellant to file and serve an answering paper against the motion of respondent to dismiss the appeal within 10 days after service thereof, the appellant is deemed by the terms of the rule to have confessed the motion.
2. It contends now, among other things, that respondent must have known from March 15th, the date when [598]*598appellant’s brief was due, that no such brief had been filed, because none had been served on him. But this conclusion does not necessarily follow, because there is no rule forbidding the filing of papers without service thereof, and this is of frequent occurrence. Moreover, the fact, if it be a fact, that the respondent had knowledge of the failure of the appellant to file its brief for more than 10 days before filing the motion to dismiss would more properly be a matter to be brought to the court’s attention by the appellant in the answering paper mentioned in the rule. The party filing a motion is not required to negative in advance the possibility that for more than 10 days he has had notice of the defects of which he complains. His waiver is a matter of defense, to be urged by his adversary.
3. By the affidavit of one of appellant’s counsel it is represented to the court that he was misled into what he claims would amount to excusable neglect on his part by the language of this court in Shafer v. Beecher, 54 Or. 273 (101 Pac. 899), by the construction placed upon rule 37 by the clerk of this court in a communication responding to appellant’s request to have time extended in which to file appellant’s brief and by the letters of respondent’s counsel suggesting that, if appellant attorneys would be present with its brief on the first day of the Pendleton term, the first Monday in May, they would argue the case on appeal, the respondent to take further time to file his brief. Whether the others of appellant’s attorneys of record were misled in any manner does not appear. The affiant states that they (associate counsel) “took no action on the motion of respondent, but assumed that the matter would be attended to by me.” Appellant’s counsel did not accept the overtures of respondent’s attorneys to be present with appellant’s brief at the opening of the Pendleton term and then argue the case on appeal. In lieu thereof, the brief was not filed until the second day [599]*599of the term, and counsel for appellant did not appear. It is not clear how appellant can take advantage of an offer of the adverse party, which was not accepted or complied with.
The letter of the clerk in response to appellant’s request to have the time for filing its.brief extended is not set out in the affidavit; hence we cannot determine whether affiant’s construction of the letter is sound or not, even if the clerk had authority to speak for the court. But it does appear that the affiant afterwards requested the clerk not to present the application for extension of time. In Shafer v. Beecher, 54 Or. 273 (101 Pac. 899), where it was sought to excuse the failure to file appellant’s brief by a showing of pressure of business on his attorney and delay of the printer in getting out the brief, this court held that reasonable diligence, under the circumstances, required the appellant to apply to the court for an extension of time. With this case and others like it cited above before him, the affiant, not to speak of his associates, without availing himself of the offer of respondent to argue the case at the opening of the Pendleton term, withdrew his application for an extension of time and went to San Francisco in attendance on the United States courts. His case is substantially like that set out in behalf of appellant in Shafer v. Beecher, in which the court affirmed the judgment of the circuit court on motion, because appellant’s brief was not filed in time.
The essence of appellant’s contention, however, is that Shafer v. Beecher places a construction on rule 37 relating to the Pendleton term to the effect that the 30 days within which the appellant must file its brief means that period of time after the transcript or abstract of record is filed, and not, in the language of the rule, “within thirty days after the appeal is perfected.” True enough, the transcript was filed in that case January 20th, and the court said the brief was due on February 20th, although, [600]*600as the files of this court show, the appeal was perfected January 4th. The opinion might as well have stated that the brief was overdue February 20th. It was in fact due as early as February 3d, that being within 30 days after the perfection of the appeal on January 4th.
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Opinion
Per Curiam.
1. In this case the notice of appeal, with proof of service thereof indorse thereon, together with the undertaking on appeal, was filed in the circuit court on February 8, 1911. No exceptions to the sufficiency of the sureties having been made within five days thereafter, as provided by Section 550, subd. 2, L. O. L., the appeal was perfected from and after February 13, 1911. “From the expiration of the time allowed to except to the sureties in the undertaking or from the justification thereof, if excepted to, the appeal shall be deemed perfected.” Section 550, subd. 4, L. O. L. Rule 37, governing the practice in this court (50 Or. 589:91 Pac. xiii) requires that, “in cases for hearing at Pendleton, the appellant, except in equity cases to be tried anew, must serve a brief containing a concise statement of the errors relied upon, within thirty days after the appeal is perfected.” Under this rule the brief of the appellant was due to be filed on or before March 15, 1911; but it was not filed until May 2d of that year. On the same day the respondent, claim[597]*597ing by an unverified statement in his motion that until that time he had no notice that the brief had not been filed, moved to dismiss the appeal. Although this motion was served on counsel for appellant at the time of filing, no opposition to it was made in any way for more than 10 days thereafter, and on July 5, 1911, there still being no opposing paper presented to the court, an order was entered dismissing the appeal. Rule 14 (50 Or. 579: 91 Pac. x); Commercial National Bank v. Temple, 56 Or. 543 (109 Pac. 129); State v. Horn, 39 Or. 152 (65 Pac. 1066); Shafer v. Beecher, 54 Or. 273 (101 Pac. 899); Smith v. Smith, 55 Or. 128 (105 Pac. 706).
This action of the court is justified, not only by the precedents above cited, but also by rule 20 (50 Or. 581: 91 Pac. xi), as amended and adopted October 5, 1909, reading thus:
“All motions and papers supplemental or opposed thereto must be filed with the clerk and served on the opposite party or his counsel, who, within ten days from such service, is required to file and serve an answering paper on the moving party or his counsel, or he shall be deemed to have confessed the motion. The moving party, after being served with an answering paper, may, within five days, serve and file a reply. All motions must be filed within ten days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction.”
For failure of the appellant to file and serve an answering paper against the motion of respondent to dismiss the appeal within 10 days after service thereof, the appellant is deemed by the terms of the rule to have confessed the motion.
2. It contends now, among other things, that respondent must have known from March 15th, the date when [598]*598appellant’s brief was due, that no such brief had been filed, because none had been served on him. But this conclusion does not necessarily follow, because there is no rule forbidding the filing of papers without service thereof, and this is of frequent occurrence. Moreover, the fact, if it be a fact, that the respondent had knowledge of the failure of the appellant to file its brief for more than 10 days before filing the motion to dismiss would more properly be a matter to be brought to the court’s attention by the appellant in the answering paper mentioned in the rule. The party filing a motion is not required to negative in advance the possibility that for more than 10 days he has had notice of the defects of which he complains. His waiver is a matter of defense, to be urged by his adversary.
3. By the affidavit of one of appellant’s counsel it is represented to the court that he was misled into what he claims would amount to excusable neglect on his part by the language of this court in Shafer v. Beecher, 54 Or. 273 (101 Pac. 899), by the construction placed upon rule 37 by the clerk of this court in a communication responding to appellant’s request to have time extended in which to file appellant’s brief and by the letters of respondent’s counsel suggesting that, if appellant attorneys would be present with its brief on the first day of the Pendleton term, the first Monday in May, they would argue the case on appeal, the respondent to take further time to file his brief. Whether the others of appellant’s attorneys of record were misled in any manner does not appear. The affiant states that they (associate counsel) “took no action on the motion of respondent, but assumed that the matter would be attended to by me.” Appellant’s counsel did not accept the overtures of respondent’s attorneys to be present with appellant’s brief at the opening of the Pendleton term and then argue the case on appeal. In lieu thereof, the brief was not filed until the second day [599]*599of the term, and counsel for appellant did not appear. It is not clear how appellant can take advantage of an offer of the adverse party, which was not accepted or complied with.
The letter of the clerk in response to appellant’s request to have the time for filing its.brief extended is not set out in the affidavit; hence we cannot determine whether affiant’s construction of the letter is sound or not, even if the clerk had authority to speak for the court. But it does appear that the affiant afterwards requested the clerk not to present the application for extension of time. In Shafer v. Beecher, 54 Or. 273 (101 Pac. 899), where it was sought to excuse the failure to file appellant’s brief by a showing of pressure of business on his attorney and delay of the printer in getting out the brief, this court held that reasonable diligence, under the circumstances, required the appellant to apply to the court for an extension of time. With this case and others like it cited above before him, the affiant, not to speak of his associates, without availing himself of the offer of respondent to argue the case at the opening of the Pendleton term, withdrew his application for an extension of time and went to San Francisco in attendance on the United States courts. His case is substantially like that set out in behalf of appellant in Shafer v. Beecher, in which the court affirmed the judgment of the circuit court on motion, because appellant’s brief was not filed in time.
The essence of appellant’s contention, however, is that Shafer v. Beecher places a construction on rule 37 relating to the Pendleton term to the effect that the 30 days within which the appellant must file its brief means that period of time after the transcript or abstract of record is filed, and not, in the language of the rule, “within thirty days after the appeal is perfected.” True enough, the transcript was filed in that case January 20th, and the court said the brief was due on February 20th, although, [600]*600as the files of this court show, the appeal was perfected January 4th. The opinion might as well have stated that the brief was overdue February 20th. It was in fact due as early as February 3d, that being within 30 days after the perfection of the appeal on January 4th. Because the court said it was due February 20th, or as elsewhere ' in the statement set down as “before February 20th,” the converse does not follow that it was not due before then. The perfection of an appeal is given a statutory definition by our code (Section 550, subd. 4, L. O. L.), under the terms of which it dates from five days after the service of the undertaking on appeal, if no objections to the sureties appear. We cannot rightly give these words a different meaning in the face of that statute. So far as Shafer v. Beecher may be construed to give another signification to the perfection of an appeal, it should at least be distinguished.
4. It is also contended by appellant that, inasmuch as this court could not have acquired jurisdiction over the cause until the transcript was filed (Section 554, L. O. L.), it could not have made an effectual order extending the time to file a brief at any date within 30 days after the appeal was perfected, so that an application to this court for that purpose would have been useless. The conclusion urged is that the omission to file the brief does not affect the appellant, unless the deliquency occurred after this court acquired jurisdiction by the filing of the transcript, and hence that the court could not dismiss the appeal. The answer to that reasoning is that the court did not undertake to make the order dismissing the appeal until after the transcript was filed, and it then had the same authority to make the order for that shortcoming of appellant as for any other occurring before filing the transcript, as, for instance, a defective notice of appeal or undertaking, or want of service of notice, and the like. Besides, Shafer v. Beecher pointedly [601]*601says that the proper course is for the appellant to apply here for further time to file its brief.
We do not think the array of counsel for appellant should be allowed to make a scape-goat of one of their number, who happened to be otherwise engaged to the detriment of the case in hand, so as to avoid the operation of the plain terms of rule 37 (50 Or. 589: 91 Pac. xiii). It has been enforced in other cases, as well as in Shafer v. Beecher, and should not be overruled in the case at bar.
The motion of the appellant to reinstate the appeal is denied. Denied.
Decided October 10, 1911.
On Petition for Rehearing.
[118 Pac. 176.]
The case of Leonard Cole v. The Willow River Land & Irrigation Company, a corporation, and the case of North American Security Company v. Leonard Cole, were considered together, since the question involved is the same in each case.
Rehearing granted and the motion to reinstate the appeal allowed, and motion to dismiss appeal denied.
Appeal Reinstated : Motion to Dismiss Denied.
For the motion Mr. Woodson T. Slater, Mr. George E. Davis, Messrs. Wheeler & Hurley and Messrs. Richards & Haga.
Mr. John L. Rand and Mr. Morton D. Clifford contra.
5. On petition of appellant for a rehearing upon the motion to reinstate the appeal, and in resistance of the motion to dismiss. The motion of respondent to dismiss was allowed on July 5, 1911, and the motion to reinstate [602]*602the appeal was denied on September 12th. This petition was filed on September 29, 1911.
Upon a reconsideration of the whole case, we are of the opinion that the appeal should be reinstated, and the motion to dismiss denied. It appears that the appellant was prosecuting his appeal in good faith, and it is a case of great importance to it. The brief was filed within the time prescribed by the rules, as counsel interpreted or understood them, being confirmed in that understanding by the language of the statement in the case of Shafer v. Beecher, 54 Or. 273 (101 Pac. 899), namely, that the 30 days in which he must file the brief commenced from the time of the filing of the transcript. The time of filing the transcript had been extended until April 15th, but it was actually filed April 10th. The appeal was perfected on February 13th, and the brief was filed on May 2d. Counsel for the appellant mailed to the clerk of this court an application for ah extension of time to file his brief, but later withdrew it, for the reason that he concluded his 30 days would begin to run on April 10th. That circumstance cannot aid him now; but it tends to show diligence on his part. . In Neppach v. Jones, 28 Or. 286, 289 (39 Pac. 999: 42 Pac. 519), it is said:
“While the court expécts and will require counsel to substantially observe the rules in the preparation and service of abstracts and briefs, yet if, through excusable neglect, the service is not made in time the court may relieve the party in default, on a proper showing, from the consequence thereof. The rules were designed and intended to facilitate the business and simplify the practice, and are not so arbitrary or inflexible as to work an injustice, or prevent a hearing in this court, when the failure to comply therewith is owing to the excusable neglect of the party.”
We are satisfied from the showing in this case that the default in filing the brief within the time prescribed by [603]*603rule 6 (56 Or. 616: 117 Pac. ix), was by reason of excusable neglect, and that appellant should be relieved from his default. Wood v. Fisk, 45 Or. 276 (77 Pac. 128, 738); Johnson v. White, 60 Or. 611 (112 Pac. 1083); Kearney v. O. R. & N. Co., 59 Or. 12 (112 Pac. 1083).
The appeal will be reinstated, and the motion to dismiss denied.