Harris v. Lebb

231 P. 186, 113 Or. 41, 1924 Ore. LEXIS 10

Opinion

McBRIDE, C. J.

This is a motion to dismiss an appeal from a decree foreclosing a mortgage upon certain real property in Multnomah County.

The decree was rendered on the second day of September, 1924. Notice of appeal was served upon the first day of November, 1924. Thereafter an un dertaking on appeal was served on the twenty-fifth day of November, 1924. A transcript was filed in this court on the third day of December, 1924.

Subdivision 2 of Section 550, Or. L., prescribes that within ten days from the giving of notice of appeal the appellant shall serve npon the adverse party an undertaking on appeal. The undertaking in this case was not filed within ten days but, on the contrary, was filed on the twenty-fifth day thereafter. It does not appear that the failure to file within the time prescribed was due to any accident or excusable mistake. Under repeated decisions of this court it has been established that a filing after the time prescribed by statute is of no effect in perfecting an appeal unless the failure to file within the time prescribed by statute is shown to have been caused by some mistake.

The appeal in this case will therefore be dismissed.

Appeal Dismissed.