Irwin v. Klamath County

210 P. 159, 110 Or. 374, 1924 Ore. LEXIS 203

• Court: Oregon Supreme Court
• Decided: March 4, 1924
• Status: Published

Opinions

Respondent has filed a motion to dismiss this appeal. Appellant makes application for an extension of time to file a printed abstract of record.

On July 26, 1922, a notice of appeal was served and filed. On August 4, 1922, an undertaking on appeal was served and filed. On August 29, 1922, appellant filed its transcript of record with the clerk of this court. Respondent moves to dismiss the appeal and affirm the judgment, for the reason that it was unnecessary for the county to file an undertaking on appeal, under Section 554, Or. L. Respondent therefore contends that the transcript of record should have been filed within thirty days following the twenty-sixth day of July, 1922, for the reason that the appellant being one of the counties of the State of Oregon, and the action being a money demand against the county, the State of Oregon is an interested party and the undertaking on appeal was useless.

Section 578, Or. L., provides:

“In all actions or proceedings in any court in this state in which the state of Oregon is a party, or interested therein, it shall not be required to advance any costs in any such action or proceeding; and that the state shall not be required to furnish any bond or undertaking upon appeal or otherwise in any such action or proceeding.”

In Miller v. State Industrial Acc. Com., 84 Or. 507 (159 Pac. 1150, 165 Pac. 576), relied upon by respondent,- it was held that the State of Oregon is interested in an appeal by the Industrial Accident Commission from an order reversing its disposition of a claim for a workman’s compensation, so that no appeal bond need be filed in view of Section 578, Or. L.

The section of the Code quoted above relied upon by respondent expressly exempts the state from the advancement of costs in an action or proceeding, and from the furnishing of any bond or undertaking on appeal. The county is not exempt therefrom by any statute o-f this state.

To state the matter most favorably to the respondents, the state is not interested in the action for money against the county of Klamath within the meaning of the statute. The financial affairs of a county are separate and distinct from those of the .state. Had it been the intention of the legislature 'in 1899, when this section of the statute was enacted, to have exempted counties or municipal corporations or other political subdivisions of the state from the necessity of giving an undertaking on appeal we think it would have so expressed its will in some plain and appropriate language.

In many jurisdictions there are statutes especially or impliedly exempting municipal corporations, counties and other political subdivisions of the state from the necessity of giving a bond or undertaking on appeal; but it is generally held that in the absence of a statute exempting them, or in the absence of an exempting statute broad enough to include them, there is no exemption in favor of municipal corporations, counties or other political subdivisions from the requirement to furnish an undertaking on appeal: 3 C. J., p. 1122, § 1162, and authorities there cited.

In Miller v. Industrial Acc. Com., 84 Or. 507, the State of Oregon was directly interested in the result of the appeal. The Industrial Accident Commission when acting for the state is embraced within the terms of Section 578, Or. L. A county is not expressly or impliedly exempt from filing* such an undertaking by the provisions of the section. Section 550, subdivision 2, Or. L., provides that “within five days after the service of said undertaking the adverse party or his attorney shall except to the sufficiency of the sureties in the undertaking, or he shall be deemed to have waived his right thereto.” Subdivision 4 of that section is to the effect that 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. The thirty days’ time for filing the transcript after the appeal was perfected, as provided by Section 554, did not commence to run until after five days’ time allowed for excepting to the sureties upon the undertaking had expired. Therefore the motion to dismiss is denied.

For appellant there was a brief and oral argument by Mr. W. A. Wiest. For respondent there was a brief over the name of Mr. W. H. A. Benner, with an oral argument by Mr. John Irwin.

The appellant moved for additional time, until October 18, 1922, to file a printed abstract of record for the reason that such time was necessary to print the same. The application should be granted. The abstract of record was tendered for filing on October 17, 1922. The appellant county will be allowed to file it as of that date. Motion Denied.