De Golia v. Andersen

188 P. 164, 101 Or. 94

• Court: Oregon Supreme Court
• Decided: March 9, 1921
• Status: Published

Opinions

PER CURIAM.

1. This is a motion to dismiss the appeal. Judgment was rendered and entered on Monday, November 3, 1919; the notice of appeal was served and filed January 3, 1920. It is contended by respondent that the service and filing is one day late. Bespondent cites the following sections of the Code:

“An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, or at the time of making the interlocutory order appealed from, shall he taken by serving and filing the notice of appeal within sixty (60) days from the entry of the judgment, order or decree appealed from * * ”: Section 550, L. O. L., as amended, Gen. Laws, 1913, Chapter 319.

“The time within which an act is to be done, as provided in this Code, shall be computed by excluding the first day and including the last, unless the last day falls upon Sunday * * or other nonjudicial day, in which case the last day shall * * be excluded”: Section 531, L. O. L.

The method of computing time within which a notice of appeal should be served and filed may be said to have been in a state of uncertainty until the case of United States Nat. Bank v. Shefler, 77 Or. 579 (143 Pac. 51, 152 Pac. 234), in which case it was held by this court, though not without dissent, that the day following the entry of a judgment was to be excluded in the computation of time.

This rule, having been generally accepted by the profession, wall be adhered to, although there are authorities holding a contrary doctrine.

Computing the time according to the rule in the case cited, the appellant is within the statute, and the motion to dismiss will be overruled.

Motion to Dismiss Overruled.