Everding & Farrell v. Gebhardt Lumber Co.

175 P. 611, 90 Or. 207, 1918 Ore. LEXIS 195

• Court: Oregon Supreme Court
• Decided: October 15, 1918
• Status: Published

Opinions

McBRIDE, C. J.

1. The defendant having prevailed in the Circuit Court, the plaintiff attempted to appeal. Defendant moves to dismiss the appeal for the reason that no notice of appeal was filed with the clerk within sixty days after the date of the judgment, as required by Section 550, L. O. L., as amended by Chap. 319, Laws of 1913, p. 618, which provides that the notice shall be served and filed within sixty days from the entry of judgment. The judgment in this case was entered May 16, 1918, and the notice of appeal was not filed until July 19, 1918, sixty-three days after the entry of judgment.

It appears from the affidavit of Mr. Magill, the counsel who had charge of the matter, that during the interim between the rendition of the judgment and the expiration of the time for filing the notice of appeal,.

, he was a permanent member of the Legal Advisory Board of Division No. 1 of the City of Portland; that in such capacity the greater portion of his time was devoted to the work of that board in the way of assisting and advising registrants, drafted men and volunteers in and about their questionaires, allotments, al-' lowances, insurance, property rights, and various matters, and has prepared for drafted men numerotis contracts, wills and affidavits relating to their real and personal property, and lias advised them in legal matters to the end that their affairs would be left in good condition and their minds relieved of worry on account thereof, and has constantly and daily been called upon by the local exemption board for advice,, and has been in almost daily consultation with said board and the members thereof. The affidavit further states that an immense volume of business was before the board, and that the services of counsel were constantly required both by the board at its headquarters and in affiant’s own office, and leaves no doubt in our mind that the services required of the counsel for appellant were constant and of great value, and were rendered without compensation- and for motives creditable alike to his good citizenship and patriotism. It is alleged in the affidavit that if there was any failure to file the notice of appeal within time, snch failure is due to the time and mind of counsel being occupied with the patriotic duties above set forth. His statements in this respect are abundantly corroborated by the affidavits of his associates in the patriotic work above described, so we are satisfied that under the pressure of such labors he overlooked filing the notice within the time prescribed by law, and if the statute left us any discretion in the matter we would gladly relieve him and his client of the consequences of the failure. Unfortunately we have no such discretion. The service and filing of the notice of appeal within the prescribed time is jurisdictional and we have neither the power to extend the time, nor the right to excuse a failure to file the notice within the legal period: State v. Zingsen, 7 Or. 137; Odell v. Gotfrey, 13 Or. 466 (11 Pac. 190); Henness v. Wells, 16 Or. 266 (19 Pac. 121); Taylor v. Lapham, 41 Or. 479 (69 Pac. 439); Dowell v. Bolt, 45 Or. 89 (75 Pac. 714).

The motion to dismiss must be sustained.'

Appeal Dismissed.