First Nat. Bank of Burns v. Frazier

22 P.2d 325, 19 P.2d 1091, 143 Or. 662

• Court: Oregon Supreme Court
• Decided: July 11, 1933
• Status: Published

Opinions

PER CURIAM.

Respondent, Basche Sage Hardware Company, moves to dismiss this appeal on two grounds: (1) That the transcript on appeal is not duly certified to, and (2) that said transcript, on its face shows that it was not filed in this court within 30 days after the appeal had become perfected.

An examination of the transcript on appeal filed in this court shows that it contains a copy of the decree appealed from, a copy of the notice of appeal with service indorsed thereon, and a copy of the undertaking on appeal with service indorsed thereon. The filing of these papers, duly certified to, within 30 days after the appeal has been perfected confers jurisdiction upon this court to hear and determine the appeal.

The transcript on appeal contains not only the documents referred to but also copies of the pleadings, motions and orders made and filed during the trial of the cause and the certificate of the county clerk attached thereto certifies that they are true and correct copies of all such documents. They are all attached together and constitute the transcript on appeal. While containing more than is required in the filing of the transcript, they do not contain less and no essential document is omitted therefrom. For that reason, we do not think the motion on that ground is well taken.

It appears from the transcript on appeal that the decree was rendered September 30, 1932. The notice of appeal, with service indorsed thereon, was filed in the court below on November 18, service of the notice having been made on the preceding day. On November 26, an undertaldng on appeal was filed in the lower court. It, however, was a defective undertaldng and was later held to be invalid by the learned trial judge. On its face it showed two defects. Section 7-504, Oregon Code 1930, provides that an undertaldng on appeal “shall be given with one or more sureties, to the effect that the appellant will pay all damages, costs, and disbursements which may be awarded against him on the appeal”. The undertaldng as filed obligated the appellant and his surety for the payment of costs only and, therefore, was not in compliance with the provisions of the statute. In terms also the undertaldng limited the liability under the undertaldng to the sum of $300 only, which also is contrary to the provisions of the statute. Because of these defects in the undertaldng, respondent moved to strike the same from the files. This motion was filed on December 5 and on the same day appellant moved for leave to file a new undertaking. Both motions were sustained by an order which was filed and entered on December 12. The new undertaldng was filed on December 15. The transcript on appeal was not filed in this court until January 18, 1933, and respondent claims that it was filed too late.

The statute provides that the transcript on appeal shall be filed in this court, unless the time therefor has been extended by an order made by the judge of the trial court or one of the justices of this court, within 30 days after the appeal has been perfected. It also provides that the adverse party, or his attorney, shall have five days after the service of the undertaldng on appeal within which to except to the sufficiency of the sureties, or he shall be deemed to have waived his right thereto, and by subdivision 4 of section 7-503, Oregon Code 1930, it is provided: “From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof if excepted to, the appeal shall be deemed perfected”.

It is because of this provision that respondent contends that the transcript on appeal was not filed within the time provided, or, in other words, within 30 days after the appeal had become perfected. Respondent claims that the appeal became perfected five days after the filing of the defective undertaking because no exceptions were filed to the sufficiency of the surety.

It is clear from the reading of the appeal statutes that the intention of the statute in granting the right to appeal is to safeguard the rights of the respondent by requiring the filing of a good and sufficient undertaking by the appellant, and to give to the respondent an opportunity to except to the sufficiency of the sureties if they were not financially responsible. And this safeguard would be defeated if the statute could be construed to mean that, under the circumstances above stated, the respondent would be deprived of the right to except to the sufficiency of the surety upon the new undertaking given in this case. Clearly, when the first undertaking was filed, respondent had the right to move to strike the same from the files and the trial court had the authority to grant the right to file a new and proper undertaking and, since the respondent had five days thereafter to except to the sufficiency of the surety on the new undertaking, the appeal could not become perfected until the expiration of that period. To otherwise construe the statute would defeat the rights of the respondent — where two undertakings had been given, one valid and the other invalid — to except to the sufficiency of the surety upon the last undertaking and, hence, we hold that the appeal was not perfected until five days after the filing of the second undertaking and that, since the transcript on appeal was filed within 30 days thereafter, it was filed in time.

S. J. Bischoff, of Portland (H. Y. Schmalz, of Burns, on the brief), for appellant. Blaine Hallock and Harold Banta, both of Baker (Halloek, Donald & Banta, of Baker, on the brief), for respondent.

The motion to dismiss the appeal is, therefore, denied.