Lawson v. Hughes

270 P. 922, 256 P. 1043, 127 Or. 16, 1928 Ore. LEXIS 264

• Court: Oregon Supreme Court
• Decided: October 5, 1928
• Status: Published

Opinions

BAND, J.

This is a motion by the respondent Hughes to .dismiss the appeal. The appeal is from a decree which the record shows was entered on September 15, 1926. Hughes appeared as his own attorney in the suit and was not represented by any other attorney. He was a resident of Los Angeles, California, and the proof of service shows that a copy of the notice of appeal and of the undertaking on appeal were each deposited in the postoffice at Bose-burg, Oregon, addressed to him at his proper place of'residence in Los Angeles, California, with postage prepaid, the notice having been mailed on November 13 and the undertaking on November 19, 1926.

By Section 541, Or. L., service by mail is deemed complete on the first day after the date of deposit of a copy in the postoffice that the mail leaves such post-office for the place to which the same is sent. The service of the notice was therefore, completed on November 14th, and this was within sixty days from the time of the entry of the decree. See Hutchison v. Crandall, 82 Or. 27 (160 Pac. 124), and McCargar v. Moore, 88 Or. 682 (157 Pac. 1107, 171 Pac. 587, 173 Pac. 258). A copy of the undertaking having been mailed on November 19th, service thereof was completed on November 20th, and there being no exception to the sufficiency of the sureties, the appeal was perfected five days thereafter. The transcript consisting of copies of the decree, notice and undertaking, with proof of service thereof and of the original testimony, depositions and other papers containing the evidence, all properly certified to, was filed in this court on February 18, 1927, together with two orders made and entered by the trial judge extending the time for filing the transcript, both of which orders were made within the time in which a transcript could be filed. On the same day that the transcript was filed the appellant made an application to this court for an extension of time to April 1, 1927, for filing the printed abstracts, and on March 22, 1927, an order was made extending the time to and including April 1, 1927, on which last-named date the abstracts were filed in strict compliance "with the order thus made. Respondent has wholly failed to point out any legal grounds upon which this appeal can be dismissed and finding none in the record the motion to dismiss must be denied.

For appellants there was a brief over the name of Mr. Albert Graham, with an oral argument by Mr. Albert Abraham. For respondent there was no appearance.