Hollywood Orchards Co. v. Dennis, Kimball & Pope

263 P. 66, 240 P. 881, 124 Or. 71

• Court: Oregon Supreme Court
• Decided: February 14, 1928
• Status: Published

Opinions

PEE CUEIAM.

This is a motion to dismiss the appeal. On the twentieth day of February, 1925, the Circuit Court granted the appellant until April 1, 1925, within which to file its transcript. On the thirty-first day of March, 1925, another order was granted extending the time to and including May 1, 1925, within which to file the transcript. The motion calls attention to the fact that there was another order extending the time to June 1, 1925, but that such order was not filed in the office of the clerk of the Circuit Court of Jackson County, Oregon, or otherwise, until May 13, 1925, and therefore it never became effective. The order which was made on April 28, 1925, bears the filing mark of May 13, 1925, and therefore, upon the face of it, it would appear that the appellant is out of court; but the appellant’s counsel presents his own affidavit to the effect that on April 28, 1925, he made a special trip to Grants Pass, procured the order on that date, and presented it to the clerk, who received it for filing. If it was actually presented to the clerk on the twenty-eighth day of April, 1925, for filing and received by her for that purpose, it will be taken to have been so filed, even though the filing mark was not placed upon it at the time.

The affidavit of counsel for the appellant is clear and emphatic that he procured the order on the twenty-eighth day of April, 1925, and actually presented it to the clerk for filing on that date. The affidavit of the clerk is to the effect that business in the office is very much congested and that there is an insufficient number of deputies in the office; that it might have been placed among the files of the case on the same day as the date it bears and inadvertently mislaid on the desk and the file-mark placed on it as May 13, 1925, through inadvertence.

The affidavit of Mattie Stevens, deputy clerk, is to the same effect, stating that there is great congestion in the clerk’s office with few limited conveniences for the conduct of the office and for the care of instruments that are presented; that often instruments and orders are mislaid; that it is entirely possible and probable that the particular order referred to in this case was, through inadvertence, mislaid at the time it was presented at the office without being formally filed; and that when asked to certify to the transcript, possibly at said time the order may have been found among the files and the filing mark then placed upon it as of the date when it was discovered. She states, however, that there is upon the order, inserted in the filing mark the words ££Apri.-28,” in the handwriting of another deputy.

In view of the affidavit of appellant’s counsel and the admissions by the authorities in the clerk’s office, and the possibility and probability of such a mistake having been made, we are inclined to hold that the order was actually presented to the clerk for filing and placed in her custody on the twenty-eighth day of April, 1925, as would seem the natural thing for ap pellant’s counsel to have done after having taken the pains to make a special trip to an adjoining county in order to have it signed by the judge.

The motion to dismiss will be overruled.

Motion Overruled.