Dolph v. Speckart

179 P. 657, 94 Or. 550

• Court: Oregon Supreme Court
• Decided: April 8, 1919
• Status: Published

Opinions

McBRIDE, C. J.

This is a motion to dismiss an appeal, on the ground that the notice of appeal does not describe with sufficient certainty the judgment appealed from.

The notice of appeal is in the usual form and states that the defendant appeals from a judgment against her rendered on June 28, 1916, for the sum of $128; the further sum of $2,509.14, and the sum of-dollars costs. The transcript discloses a judgment for the sum of $128.50, the further sum of $2,509.14, and $57.05 costs, entered on July 1, 1916, and dated June 29, 1916. The notice of appeal was served August 27, 1918, and an undertaking on appeal was served and filed September 6,1918, which undertaking followed the notice in the description of the judgment. On September 10, 1918, the plaintiff filed exceptions to the undertaking, and on September 20th, the exceptions were heard and defendant was required to give a new undertaking, which undertaking was actually filed on September 20, 1918, which also followed the notice of appeal. This undertaking was excepted to, and thereupon on September 25, 1918, defendant filed an undertaking on appeal and for a supersedeas which was conditioned to satisfy the judgment that should be rendered on appeal. The description of the judgment in this undertaking followed the previous undertaking and recited1 that the judgment was rendered on June 28, 1918. No exception being filed, the undertaking was approved.

1. We do not think the misdescription of the judgment was such as to have misled the plaintiff. The verdict was rendered on June 28th, and the judgment should have been rendered on that day: Section 201, L. O. L.

The defendant, in taking her appeal, naturally assumed, and had a right to assume, that plaintiff had complied with the law, and should not be prejudiced by the fact that plaintiff had waited until a later date to enter the judgment, if in fact it was entered and in force at the date of taking the appeal. As before recited, the plaintiff appeared several times in the Circuit Court to object to the sufficiency of the sureties upon the undertaking, thereby recognizing the fact that he was informed of and knew the judgment defendant was attempting to appeal from, and, indeed, considering the fact that the judgment was upon two causes of action, and for separate amounts in each, and that the verdict was rendered upon the twenty-eighth day of June, and the judgment due for entry on that day, he could not as a matter of law have been misled. <

2. As to the misdescription of the amount of the judgment, it may be repeated that the verdict was upon two causes of action. Upon the first, the jury awarded plaintiff $128.50; upon the second $2,509.14. In the notice of appeal the amounts are stated at $128 and $2,509.14. It is needless to say that the notice is technically inaccurate in respect to the judgment rendered upon the first cause of action, but we are of the opinion that the inaccuracy is not of such a character as to have misled anyone, and the record of plaintiff’s various appearances in the Circuit Court thereafter indicates that he was not uncertain as to what judgment defendant was appealing from.

3. In justice to the attorney for the defendant it is not improper to state that it appears from his affidavit, which is not contradicted, that before the entry of- the judgment, as it now appears of record, the attorney for the plaintiff served upon him a copy of the judgment which plaintiff proposed to ask the court to enter, and that in this copy the proposed judgment is described and dated exactly as recited in the notice of appeal. While we do not pass upon the efficacy of such an affidavit, as tending to explain a defective notice, it at least relieves counsel for defendant from any imputation of carelessness in preparing his notice.

4. This court has always been liberal in its construction of our appeal statutes, to the end that no one shall be deprived of his right to be heard here, by reason of any mere technicality arising from a strained construction of the statutes, substantial compliance with which is all that ought to be required. The motion to dismiss is overruled.

Counsel for defendant has interposed a counter-motion for leave to file an amended undertaking, complying with the description of the judgment as actually entered, and this motion is allowed.

Motion to Dismiss Overruled.

Motion to Amend Undertaking Allowed.