De Lore v. Smith

132 P. 521, 67 Or. 304, 1913 Ore. LEXIS 394

Opinions

Mr. Justice Moore

delivered the opinion of the court.

1. This is a motion to dismiss an appeal and affirm a judgment. An inspection of the transcript brought up shows that a trial of the action resulted in a verdict and judgment in favor of the defendant. Three days thereafter a motion to set aside the verdict and for a new trial was denied, whereupon plaintiff’s counsel in open court gave an oral notice of appeal and within the time prescribed filed an undertaking therefor. Thereafter the attempted appeal was abandoned ' and a written notice of appeal and an undertaking thereon were served and filed. The transcript. of appeal was left with our clerk within the time prescribed considering the latter notice and undertaking as the initiation of a review of the judgment.

The defendant’s counsel maintain that, the appeal having been perfected pursuant to the original oral notice, it cannot be abandoned and a new appeal taken. This contention is without merit, however, for as the oral notice was given at the time the motion for a new trial was denied, and not at the time the judgment was given and entered, the notice was ineffectual for any purpose: Sections 201, 550, L. O. L.; Barde v. Wilson, 54 Or. 68 (102 Pac. 301).

The original attempt to review the judgment being ineffectual, it was proper to abandon the experiment and to begin again by the service of a written notice of appeal and the giving of an undertaking thereon.

It follows that the motion should be denied, and it is so ordered. Denied.