Felder v. S. A. Foster Lbr. Co.

220 P. 1018, 109 Or. 479, 1923 Ore. LEXIS 119

• Court: Oregon Supreme Court
• Decided: December 18, 1923
• Status: Published

Opinion

McBRIDE, C. J.

This is a case of an abandoned appeal. The defendant served notice of appeal from a judgment in favor of plaintiff for the sum of $265.32 and costs and disbursements taxed at $34.50. Defendant served a timely notice of appeal and its undertaking, but thereafter took no step to file any transcript in this case. Plaintiff brings a transcript of his judgment here, together with the undertaking of defendant on appeal, and moves that the appeal be dismissed and the judgment affirmed. This motion is accompanied by an affidavit of A. F. Flegel, Jr., one of the attorneys for plaintiff, to the effect that no motion or demurrer was decided adversely to defendant in the Circuit Court; that no motion for nonsuit or for directed verdict was made at said trial by the defendant; that no exceptions were taken by defendant to any ruling or instruction of the court during or connected with said trial, nor was there any motion made by defendant for judgment notwithstanding the verdict of the jury, nor for a new trial; that said cause was tried by a jury upon its merits and a verdict duly rendered by the jury in favor of plaintiff and against defendant; together with other statements tending to establish the fact that the appeal was taken really for delay and in order to prevent an execution upon the judgment in the case at bar until another case between the same parties had been decided. There is no counter-affidavit.

This is clearly a case where the appeal was taken for delay and the judgment will therefore be affirmed against defendant and its sureties, together with damages for delay in the sum of $29.98.

Appeal Dismissed.