Logan v. Cross

192 P. 656, 98 Or. 274, 1920 Ore. LEXIS 92

Opinions

PER CURIAM.

1. This is a motion to dismiss an appeal for want of a sufficient undertaking. The plaintiffs on March 18, 1920, recovered a judgment against defendant for the sum of $535.00, and $93.30, costs. On May 8,1920, defendant filed and served his notice of appeal' with an undertaking sufficient in form and amount, signed by C. E. Cross as surety, the affidavit of the surety being dated March 29, 1920. Thereafter and in due time the plaintiffs filed their exception to the sufficiency of the surety, whereupon, without appearing before the court or clerk thereof, he was examined before a notary upon written interrogatories propounded by the counsel for defendant, plaintiffs not appearing at said hearing, from which interrogatories and answers thereto it appeared that the surety was worth the sum of $11,000, over and above his debts and property exempt from execution.

Plaintiffs now move to dismiss the appeal for the reason that such justification was not taken before the court or the clerk thereof. Subdivision 2 of Section 550, Oregon Laws, provides:

“Within ten days from the giving of notice or service of notice of the appeal, the appellant shall cause to be served on the adverse party or his attorney an undertaking as hereinafter provided, and within said ten days shall file the original of said undertaking, with proof of service indorsed thereon, with said clerk. 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 hé shall be deemed to have waived his. right thereto. ’ ’

Subdivision 3 of said section provides:

“The qualifications of sureties in the undertaking on appeal shall be the same as in bail on arrest, and, if excepted to, they shall justify in like manner.”

Section 270, Oregon Laws, provides:

“For the purpose of justification, each of the bail shall attend before the judge or clerk, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or clerk in his discretion may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff. ’ ’

It nowhere appears that the surety appeared before the judge or clerk for the purposes of justification. On the contrary, it appears that he did not so appear, and that his examination was upon written interrogatories. The personal presence of the surety before one of the officers designated is ^clearly re quired. Appeal is a privilege -which can only ripen into a right by substantial compliance with the requirements of the statute. . j

The appeal will be dismissed, and the judgment affirmed. Appeal Dismissed. Affirmed.

Modified December 14, 1920.