Johnson v. Iankovetz

102 P. 799, 57 Or. 24, 1910 Ore. LEXIS 216

• Court: Oregon Supreme Court
• Decided: July 26, 1910
• Status: Published

Opinions

Decided July 13, 1909.

On Motion to Dismiss.

[102 Pac. 799.]

Opinion by

Mr. Chief Justice Moore.

1. This is a motion to dismiss an appeal. A judgment was rendered in this action against the defendant, who perfected an appeal therefrom, and thereafter procured from the trial court an order extending the time within which to file a transcript on appeal. Before the expiration of the time limited, the defendant obtained from that court another like order, and within the time prescribed he filed in this court the transcript. This motion was interposed on the ground that the transcript was not filed within the time limited therefor, the plaintiff’s counsel contending that the orders referred to were made without notice to the adverse party as required by rules 6, 9, and 21 of the trial court. Copies of such rules have been duly authenticated and submitted with the motion. These rules provide", in effect, that a motion book shall be kept in which, upon the written application of either party, all motions in civil actions shall be noted, and such motions shall be heard on the third day after being so set down. Motions for extensions of time, however, may be heard each morning. Rule 6.

Copies of all papers filed in a cause must be served on the attorney for the adverse party, and no motion shall be heard except by consent of both parties, unless a copy thereof has been served. Rule 9.

“No agreement between the parties or their attorneys concerning any proceeding before the court will be regarded or enforced, unless the same be made in open court or reduced to writing and subscribed by the party or attorney to be bound thereby.” Rule 21.

The defendant’s counsel, opposing the motion, filed an affidavit which states that he informed plaintiff’s attorney that he intended to apply for the extensions, which were granted, and that on one occasion plaintiff’s attorney was present when the order was made. An examination of the transcript indicates that when the first order was made plaintiff’s counsel was in open court, but that he was absent when the second order was issued; that no written notice was served upon him; and that he had not agreed in writing that such order should be made. If the rules of the trial court are to govern, no jurisdiction of the appeal was obtained, for the second order was made without attempting to comply with such rules. Rules are adopted to regulate the practice and to facilitate the dispatch of business pending in a court. When an appeal from a judgment or a decree, given by a trial court, has been perfected, the cause, so far as that tribunal is concerned, has terminated, and is no longer pending therein.

The statute demands that within 30 days after the appeal is perfected a transcript or an abstract on appeal must be filed with the clerk of the appellate court, and if not so filed the appeal shall be deemed abandoned and the effect thereof terminated, “but the trial court or the judge thereof, or the Supreme Court or a justice thereof, may, upon such terms, as may be just, by order enlarge the time for filing the same.” Section 553, B. & C. Comp. That enactment authorizes this court or a justice thereof to enlarge the time to file a transcript, though no jurisdiction of an appeal is obtained until such transcript has been filed. So, too, the trial court or its judge may make a like order, but, in doing so, a statutory power is exercised which is not based on the fact that the cause is pending in that court, though it may have quasi jurisdiction until the transcript is filed in the appellate court. Orders enlarging the time within which to file transcripts are made by justices of this court without notice to adverse parties. Such procedure is at times necessary, for an appellant who has ordered a transcript may discover at almost the last hour that the record cannot be prepared in time for filing, and, if notice of his application were required to be served upon the respondent or his attorney, the right of appeal might be lost.

As the cause is not in fact pending in a trial court after an appeal has been perfected from a judgment or a decree rendered therein, it is not believed that the rules of that court were ever designed to regulate the practice which pertains to .this court in relation to such matters; and, this being so, the trial court or the judge thereof may, by order, enlarge the time within which to file a transcript on appeal without notice to the adverse party, thereby making the practice in all courts uniform throughout the State.

It follows that the motion should be denied; and it is so ordered. Denied.

Statement by Mr. Justice Eakin.

This is an action of replevin commenced in the justice court for the recovery of two guns of the value of $45.05. On August 25, 1908, E. C. Adams contracted to purchase from plaintiff the two guns at the price named, and, for the purpose of payment, gave to him his check for $45.30 on the Merchants’ National Bank. He had no money in the bank and the check was dishonored. At the time of the transaction, plaintiff delivered the goods to Adams, who, the same day, sold them to defendant for the sum of $22. Upon appeal to the circuit court of Multnomah County, judgment was rendered in favor of plaintiff. Defendant appeals.

Affirmed. For appellant there was a brief over the names of Mr. Harry Yankwich and Mr. Leon Yankwich, with an oral argument by Mr. Harry Yankwich. For respondent there was a brief over the names of Messrs. Bigger & Wilson, with an oral argument by Mr. Henry J. Bigger.