Li Sai Cheuk v. Lee Lung

Oregon Supreme Court

Li Sai Cheuk v. Lee Lung

146 P. 94, 79 Or. 563, 1916 Ore. LEXIS 139

CourtOregon Supreme Court

DecidedMarch 21, 1916

StatusPublished

Cited by8 cases

This text of 146 P. 94 (Li Sai Cheuk v. Lee Lung) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Li Sai Cheuk v. Lee Lung, 146 P. 94, 79 Or. 563, 1916 Ore. LEXIS 139 (Or. 1916).

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Opinions

Opinion by

Mr. Chief Justice Moore.

1. This is a motion to dismiss an appeal. An action was commenced to recover money, and the defendant not having appeared or answered within the time specified, after the summons appears personally to have been served upon him, as evidenced by the return indorsed upon the process, judgment was rendered against him for the sum demanded. Soon thereafter the defendant’s counsel moved to set aside the judgment and for leave to answer, supplementing the application by his own affidavit and tendering therewith an answer to be filed. The plaintiff’s counsel filed a counter-affidavit, and, upon the written declarations of facts thus voluntarily made, the application was denied, from which order the defendant perfected an ap[565]*565peal and filed with the clerk of this court a transcript and a printed abstract of the record August 15, 1914, and within the time limited therefor. The defendant’s brief was filed in this court January 9, 1915, and five days thereafter the plaintiff’s counsel moved to dismiss the appeal on the ground that no bill of exceptions had been filed.

The abstract of record contains copies of all the papers filed in the trial court or tendered for that purpose, the judgment and orders made and entered in this cause, the notice of appeal, and the undertaking therefor. The transcript also contains duplicates of the judgment, orders, notice of appeal, and undertaking, which authenticated copies having been filed with our clerk within the time limited, jurisdiction of' the cause was thereby secured. Rule 23 of this court, as far as material herein, reads:

“All motions must be filed within ten days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction”: 56 Or. 623 (117 Pac. xii).

Prom an indorsement noted upon the abstract on file herein, it is manifest that plaintiff’s counsel accepted service of a copy thereof August 12, 1914, and thereby obtained knowledge of any alleged failure to comply with the requirements of the statute or the rules of this court.

As jurisdiction of the appeal was secured, and as the motion now interposed was not filed within the time required, the motion to dismiss the appeal should be denied, and is so ordered. Motion Denied.

Me. Justice Eakin not sitting.

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Opinion by

Mr. Chief Justice Moore.

1. This is a motion to dismiss an appeal. An action was commenced to recover money, and the defendant not having appeared or answered within the time specified, after the summons appears personally to have been served upon him, as evidenced by the return indorsed upon the process, judgment was rendered against him for the sum demanded. Soon thereafter the defendant’s counsel moved to set aside the judgment and for leave to answer, supplementing the application by his own affidavit and tendering therewith an answer to be filed. The plaintiff’s counsel filed a counter-affidavit, and, upon the written declarations of facts thus voluntarily made, the application was denied, from which order the defendant perfected an ap[565]*565peal and filed with the clerk of this court a transcript and a printed abstract of the record August 15, 1914, and within the time limited therefor. The defendant’s brief was filed in this court January 9, 1915, and five days thereafter the plaintiff’s counsel moved to dismiss the appeal on the ground that no bill of exceptions had been filed.

The abstract of record contains copies of all the papers filed in the trial court or tendered for that purpose, the judgment and orders made and entered in this cause, the notice of appeal, and the undertaking therefor. The transcript also contains duplicates of the judgment, orders, notice of appeal, and undertaking, which authenticated copies having been filed with our clerk within the time limited, jurisdiction of' the cause was thereby secured. Rule 23 of this court, as far as material herein, reads:

“All motions must be filed within ten days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction”: 56 Or. 623 (117 Pac. xii).

Prom an indorsement noted upon the abstract on file herein, it is manifest that plaintiff’s counsel accepted service of a copy thereof August 12, 1914, and thereby obtained knowledge of any alleged failure to comply with the requirements of the statute or the rules of this court.

As jurisdiction of the appeal was secured, and as the motion now interposed was not filed within the time required, the motion to dismiss the appeal should be denied, and is so ordered. Motion Denied.

Me. Justice Eakin not sitting.

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Bluebook (online)

146 P. 94, 79 Or. 563, 1916 Ore. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/li-sai-cheuk-v-lee-lung-or-1916.

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