Fleming v. Gerlinger Motor Car Co.

159 P. 1153, 86 Or. 195

Opinions

Opinion

Per Curiam.

1. A judgment dismissing this action was rendered February 4, 1916, and on April 4th, following, the plaintiff served and filed a notice of appeal and an undertaking therefor. The defendant’s counsel on April 17,1916, excepted to the sufficiency of the sureties on the undertaking, which exceptions were overruled on the 27th of that month. The trial court on May 27, 1916, made an order extending the time to June 3,1916, in which to file a transcript in this court, and the transcript was filed within the time so limited. The defendant’s counsel moved to dismiss the appeal on the ground that jurisdiction of the attempted review of the judgment had been lost when such order was made. The statute declares that within ten days from the serving of a notice of appeal the appellant is required to serve upon the adverse party and file an undertaking on appeal. The respondent is allowed five days after the service of the undertaking in which to except to the sureties thereon: Section 550, subd. 2, L. O. L.

“From the expiration of the time allowed to except to the sureties in the undertaking, or from the justifica ■lion thereof if excepted to, the appeal shall be deemed perfected”: Section. 550, snbd. 4, L. O. L.

“Upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript,” etc.: Section 554.

It appears from an affidavit filed herein that by agreement with defendant’s counsel the plaintiff deposited with the clerk of the trial court the sum of $100 as costs and disbursements in case the judgment was affirmed on appeal, whereupon the exceptions so interposed were waived. This procedure was equivalent to a justification by the sureties, and the order of the trial court extending the time to file the transcript, was made within 30 days from the time the exceptions were overruled, and while that court had jurisdiction of the cause.

The motion to dismiss the appeal is therefore denied.

Motion Denied.