BROWN, J.
This is a motion to dismiss an appeal in the matter of the application of J. Alvin Riggs, C. H. Hardy and J. Gr. McGuffie, the board of direc[533]*533tors of Central Oregon Irrigation District, a municipal corporation, for the validation of certain proceedings and acts of the directors and district. The motion is grounded upon the alleged failure of the appellant to file his transcript within the time required by statute.
It is elementary that the service and filing of the notice of appeal, and the filing of the transcript on appeal, are necessary successive jurisdictional steps. Unless taken, this court cannot proceed to hear and determine the suit.
From the record, it appears that on March 29, 1922, notice of appeal was served upon respondents and filed in the Circuit Court of Deschutes County, Oregon. On April 7,1922, the undertaking on appeal was duly served and filed, and the transcript on appeal on May 15th. No exception was taken to the sufficiency of the sureties on the appeal bond, hence the appeal became perfected five days thereafter: Section 550, Or. L.
Our statute provides that:
“The time within which an act is to be done as provided in this Code, shall be computed by excluding the first day and including the last, unless the last day fall upon Sunday, Christmas, or other nonjudicial day, in which case the last day shall also be excluded.” Section 531, Or. L.
On grounds of stare decisis, we follow the construction of the foregoing section of the Code in so far as it applies to appeals, given in a per curiam opinion, where it was said:
“The method of computing time within which a notice of appeal should be served and filed may be said to have been in a state of uncertainty until the case of United States Nat. Bank v. Shefler, 77 Or. 579 (143 Pac. 51, 152 Pac. 234), in which case it was held by this court, though not without dissent, that Oe [534]*534day following the entry of a judgment was to be excluded in the computation of time. This rule, having been generally accepted by the profession, will be adhered to, although there are authorities holding a contrary doctrine.” In re Andersen’s Estate, De Golia v. Andersen, 101 Or. 94 (188 Pac. 164).
To like effect is Vincent v. First Nat. Bank, 76 Or. 579 (143 Pac. 1100, 149 Pac. 938.)
Excluding the seventh day of April, 1922, the date of service and filing of the undertaking, and the first day of the period of five days following, the time in which the adverse parties had a right to except to the sufficiency of the sureties expired on April 13th. Hence, the appeal in this cause became complete at the end of that day.
Within thirty days after an appeal has been perfected, the appellant must file with the clerk of the appellate court his transcript, and if not so filed the appeal shall be deemed abandoned, unless “the trial court or the judge thereof, or the supreme court or a justice thereof” extend the time for filing such transcript: Section 554, Or. L.
April 14th was the first day on which the appellants could lawfully have filed their transcript on appeal. Under the rule laid down by our statute for computing the time in which an act may be done, as construed by the decisions cited, we must exclude April 14th. By computation we find that the period of thirty days expired on Sunday, May 14th, and for that reason the appellants were entitled to an additional day in which to file their transcript.
How time shall be computed is a matter which has been litigated since the existence of the common law. In the computation of the period of time, the contest has generally been: Which day shall be included and which excluded? It would be difficult, however, [535]*535to extract any uniform rule from the diverse holdings of the courts on this question: Hahn v. Dierkes, 37 Mo. 574. It is not really important which rule is adopted, hut it is of great interest to the profession in the practice of the law that uncertainty on this subject should be avoided: Blake v. Crownshield, 9 N. H. 304-307. "We are familiar with all the holdings of our court upon this subject. But in the case at bar, the appellant had a right to rely upon the latest expression of this court relating to the computation of time in the matter of appeals.
(207 Pac. 1005.)
Mr. Harrison Allen, Mr. John R. Latourette and Mr. H. H. De Armond, for the motion.
Mr. Paul G. King and Mr. R. 8. Hamilton, contra.
It has been written that:
“Parties should not be encouraged to seek reexamination of determined principles and to speculate on a fluctuation of the law with every change in the expounders of it. As to many matters of frequent occurrence, the establishment of some certain guide is of more significance than the precise form of the rule, and substantial justice may often be better promoted by adhering to an erroneous decision than by overthrowing a rule once established.” 7 R. C. L. 1000, 1001.
The motion is denied. Denied.
Motion to affirm decree denied July 18, 1922.
On Motion to Apeibm Decree.
McCOUBT, J.
This is a proceeding brought by the members of the board of directors of Central Oregon Irrigation District and by the district, to secure a [536]*536judgment of confirmation of certain proceedings of the said board and of the said district, providing for and authorizing the issue and sale of the bonds of the district. A number of land owners within the district, for themselves and all other similarly situated whose lands were attempted to be excluded from the district by order of the board of directors, dated the tenth day of November, 1921, have appealed from the decree of the Circuit Court, validating and confirming the proceedings for the organization of the district and authorizing the issue and sale of bonds of the district.
The petitioners have interposed a motion for an order affirming a decree of the Circuit Court based upon the failure of the defendants to serve and file upon respondent a printed abstract of so much of the record as may be necessary to a full understanding of the questions presented for decision, as required by rules 6 and 11 of the Supreme Court: 100 Or. 744, 747 (202 Pac. xiii, 173 Pac. ix).
The defendants filed in this court on May 15, 1922, a transcript consisting of the judgment-roll in the Circuit Court, made up of all of theoriginal pleadings and orders therein, and a transcript of the evidence introduced upon the hearing in the Circuit Court and all the original exhibits introduced in the cause, save and except those for which copies were substituted under the order of the court. The defendants did not file a printed abstract of record nor any assignment of errors, but on June 12, 1922, they filed their printed brief, which points out the alleged material defects in the record of the proceedings conducted by the petitioners, as shown by the record.
Defendants have filed a motion for leave to file a printed abstract, in which they propose to incorporate a .formal assignment of errors, together with [537]
Free access — add to your briefcase to read the full text and ask questions with AI
BROWN, J.
This is a motion to dismiss an appeal in the matter of the application of J. Alvin Riggs, C. H. Hardy and J. Gr. McGuffie, the board of direc[533]*533tors of Central Oregon Irrigation District, a municipal corporation, for the validation of certain proceedings and acts of the directors and district. The motion is grounded upon the alleged failure of the appellant to file his transcript within the time required by statute.
It is elementary that the service and filing of the notice of appeal, and the filing of the transcript on appeal, are necessary successive jurisdictional steps. Unless taken, this court cannot proceed to hear and determine the suit.
From the record, it appears that on March 29, 1922, notice of appeal was served upon respondents and filed in the Circuit Court of Deschutes County, Oregon. On April 7,1922, the undertaking on appeal was duly served and filed, and the transcript on appeal on May 15th. No exception was taken to the sufficiency of the sureties on the appeal bond, hence the appeal became perfected five days thereafter: Section 550, Or. L.
Our statute provides that:
“The time within which an act is to be done as provided in this Code, shall be computed by excluding the first day and including the last, unless the last day fall upon Sunday, Christmas, or other nonjudicial day, in which case the last day shall also be excluded.” Section 531, Or. L.
On grounds of stare decisis, we follow the construction of the foregoing section of the Code in so far as it applies to appeals, given in a per curiam opinion, where it was said:
“The method of computing time within which a notice of appeal should be served and filed may be said to have been in a state of uncertainty until the case of United States Nat. Bank v. Shefler, 77 Or. 579 (143 Pac. 51, 152 Pac. 234), in which case it was held by this court, though not without dissent, that Oe [534]*534day following the entry of a judgment was to be excluded in the computation of time. This rule, having been generally accepted by the profession, will be adhered to, although there are authorities holding a contrary doctrine.” In re Andersen’s Estate, De Golia v. Andersen, 101 Or. 94 (188 Pac. 164).
To like effect is Vincent v. First Nat. Bank, 76 Or. 579 (143 Pac. 1100, 149 Pac. 938.)
Excluding the seventh day of April, 1922, the date of service and filing of the undertaking, and the first day of the period of five days following, the time in which the adverse parties had a right to except to the sufficiency of the sureties expired on April 13th. Hence, the appeal in this cause became complete at the end of that day.
Within thirty days after an appeal has been perfected, the appellant must file with the clerk of the appellate court his transcript, and if not so filed the appeal shall be deemed abandoned, unless “the trial court or the judge thereof, or the supreme court or a justice thereof” extend the time for filing such transcript: Section 554, Or. L.
April 14th was the first day on which the appellants could lawfully have filed their transcript on appeal. Under the rule laid down by our statute for computing the time in which an act may be done, as construed by the decisions cited, we must exclude April 14th. By computation we find that the period of thirty days expired on Sunday, May 14th, and for that reason the appellants were entitled to an additional day in which to file their transcript.
How time shall be computed is a matter which has been litigated since the existence of the common law. In the computation of the period of time, the contest has generally been: Which day shall be included and which excluded? It would be difficult, however, [535]*535to extract any uniform rule from the diverse holdings of the courts on this question: Hahn v. Dierkes, 37 Mo. 574. It is not really important which rule is adopted, hut it is of great interest to the profession in the practice of the law that uncertainty on this subject should be avoided: Blake v. Crownshield, 9 N. H. 304-307. "We are familiar with all the holdings of our court upon this subject. But in the case at bar, the appellant had a right to rely upon the latest expression of this court relating to the computation of time in the matter of appeals.
(207 Pac. 1005.)
Mr. Harrison Allen, Mr. John R. Latourette and Mr. H. H. De Armond, for the motion.
Mr. Paul G. King and Mr. R. 8. Hamilton, contra.
It has been written that:
“Parties should not be encouraged to seek reexamination of determined principles and to speculate on a fluctuation of the law with every change in the expounders of it. As to many matters of frequent occurrence, the establishment of some certain guide is of more significance than the precise form of the rule, and substantial justice may often be better promoted by adhering to an erroneous decision than by overthrowing a rule once established.” 7 R. C. L. 1000, 1001.
The motion is denied. Denied.
Motion to affirm decree denied July 18, 1922.
On Motion to Apeibm Decree.
McCOUBT, J.
This is a proceeding brought by the members of the board of directors of Central Oregon Irrigation District and by the district, to secure a [536]*536judgment of confirmation of certain proceedings of the said board and of the said district, providing for and authorizing the issue and sale of the bonds of the district. A number of land owners within the district, for themselves and all other similarly situated whose lands were attempted to be excluded from the district by order of the board of directors, dated the tenth day of November, 1921, have appealed from the decree of the Circuit Court, validating and confirming the proceedings for the organization of the district and authorizing the issue and sale of bonds of the district.
The petitioners have interposed a motion for an order affirming a decree of the Circuit Court based upon the failure of the defendants to serve and file upon respondent a printed abstract of so much of the record as may be necessary to a full understanding of the questions presented for decision, as required by rules 6 and 11 of the Supreme Court: 100 Or. 744, 747 (202 Pac. xiii, 173 Pac. ix).
The defendants filed in this court on May 15, 1922, a transcript consisting of the judgment-roll in the Circuit Court, made up of all of theoriginal pleadings and orders therein, and a transcript of the evidence introduced upon the hearing in the Circuit Court and all the original exhibits introduced in the cause, save and except those for which copies were substituted under the order of the court. The defendants did not file a printed abstract of record nor any assignment of errors, but on June 12, 1922, they filed their printed brief, which points out the alleged material defects in the record of the proceedings conducted by the petitioners, as shown by the record.
Defendants have filed a motion for leave to file a printed abstract, in which they propose to incorporate a .formal assignment of errors, together with [537]*537so much of the record as may be necessary to a full understanding of the questions presented for decision, and assert that their failure to file a printed abstract in the first instance was due to a misconstruction placed upon Section 554, Or. L., by the attorneys for defendants. They aver in substance that they construed Section 554, Or. L., as requiring a transcript or a printed abstract, but not both, and that inasmuch as the entire record had been brought to this court, a printed abstract would not be required. This court acquired jurisdiction of the cause upon the filing of the transcript.
In the case of Fleischner v. Bank of McMinnville, 36 Or. 553 (54 Pac. 884), the court said:
“But the question presented is not jurisdictional, and the abstract being required in certain form, and containing certain matter for the benefit and assistance of the court, and to relieve it as much as possible from the labor of searching in many instances through cumbersome records, and to enable it to ascertain at a glance the errors relied upon, it may, under certain contingencies, be excused entirely, or the court may dismiss the cause for nonobservance of requirements touching it. Nevertheless all parties who can reasonably comply with the rules governing its preparation and service should be required to conform to them. ’ ’
The court has in several instances allowed parties to amend a printed abstract by adding thereto assignments of error where respondent has not been affected by the omission and to incorporate therein similar assignments of error, it appearing that the omission was due to the inadvertence or excusable mistake of appellant: Salene v. Isherwood, 74 Or. 35, 40 (144 Pac. 1175); Skinner’s Will, 40 Or. 571, 575 (62 Pac. 523, 67 Pac. 951); Robinson v. Phegley, [538]*53893 Or. 299, 303 (177 Pac. 942, 178 Pac. 799, 182 Pac. 373).
The failure of the defendants in this case to file a printed abstract and assignments of error has not materially delayed or injured the petitioner, and in view o.f the character of the proceeding, we think it would not be in the interests of justice to affirm the decree upon account of the omission to observe a rule of procedure not going to the jurisdiction of the court and not affecting the merits of the proceeding.
The motion to affirm the decree is denied and the motion for leave to file the printed abstract is allowed. The printed abstract shall be served and filed on or before the first day of August, 1922, and respondents shall have to and including the twentieth day of August, 1922, within which to serve and file their brief herein. Motion Denied.