Kallunki v. City of Astoria

220 P. 145, 109 Or. 363, 1923 Ore. LEXIS 106

• Court: Oregon Supreme Court
• Decided: November 20, 1923
• Status: Published

Opinion

McBEIDE, C. J.

Subdivision 2 of Section 554, Or. L., is as follows:

“2. If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, 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; but such order shall be made within the time allowed to file transcript, and shall not extend it beyond the term of the appellate court next following the appeal.”

For the sabe of clarity we will again recount the chronology of this case. The term of this court which immediately followed the perfection of the appeal was the October term, 1922, which ended March 4, 1923. This was the time limit prescribed by Section 554, beyond which the lower court could not for any reason extend the time for filing the transcript, and its orders attempting to do so were absolutely void. The transcript was actually filed July 27, 1923, 144 days after the expiration of the October term.

The case comes clearly within the rule adopted by this court in Simon v. Trummer, 61 Or. 496 (123 Pac. 60), which is again followed in Emery v. Brown, 63 Or. 264 (127 Pac. 682), in which we called attention to the case of Kelley v. Pike, 17 Or. 330 (20 Pac. 685), which also supports respondent’s contention. In all these cases we clearly held that filing the transcript after the expiration of the next term of the Supreme Court was of no avail, and that this court had no power to entertain an appeal which had not been filed during the term of the Supreme Court next following the appeal.

Under the circumstances here we would be very glad to allow this appeal to stand, if it were possible to do so without violating the plain terms of the statute, but the filing of the transcript within the term of this court next following the appeal is jurisdictional and we have no more right to entertain the appeal because of actual or supposed hardship than we would have to entertain an appeal which had been attempted after the time for filing and serving notice had expired.

The motion will be allowed and the appeal dismissed. Appeal Dismissed.

Burnett, J., took no part in the consideration of this motion.