Martin v. Harrison

186 P.2d 534, 180 P.2d 119, 182 Or. 121, 1947 Ore. LEXIS 235

• Court: Oregon Supreme Court
• Decided: October 15, 1947
• Status: Published

Opinions

ROSSMAN, C. J.

This cause is before us upon a motion of the re spondent to dismiss tMs appeal. The contention which underlies the motion is that the failure of the appellant to have filed timely a transcript on appeal requires a holding that the appellant abandoned her appeal. October 28, 1946, the respondent was awarded judgment against the appellant in the amount of $4,000. December 27, 1946, the appellant served and filed notice of appeal. January 5, 1947, an undertaking on appeal was served and filed.

Section 10-803, O. C. L. A., as amended by Oregon Laws 1943, chapter 119, section 1, says:

“1. * * # Upon notice of appeal being given, as herein provided, and entered in the journal of the court or filed with the clerk of the court, as the case may be, the appellate court shall have jurisdiction of the cause * * .

“2. Within 10 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 * *. Within five days after the service of said undertaking the adverse party or his attorney shall except to the sufficiency of the sureties * ® *.

“4. From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof if excepted to, the appeal shall be deemed perfected. ’ ’

Section 10-807, O. C. L. A., as amended by Oregon Laws 1943, chapter 119, section 2, says:

“Upon the appeal being perfected the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript, * * V’

January 29,1947, the circuit court entered an order which said:

“For good cause shown, and based upon the application of the attorneys for defendants, the appealing parties hereto, it is hereby ordered that the defendants’ time in which to file in the Supreme Court the transcript on appeal and judgment roll in the within cause, be and the same hereby is extended to and including the 15th day of March, 1947, • *

In the margin of that order appears the following: “Consented to by Eobin D. Day, plaintiff’s attorney.”

March 10, 1947, the circuit court entered an order which extended to April 5,1947, the appellant’s time to file the transcript on appeal. April 11,1947, although the transcript had been prepared by the county clerk, it had not been filed with the clerk of this court. April 11,1947, the respondent filed the motion now before us.

Section 10-807, subdivision 2, O. C. L. A., which, as amended by Oregon Laws 1943, chapter 119, § 2, says:

“2. 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 transcript, but the application for such order shall be served and filed within the time allowed to file transcripts, and the order shall be made within 10 days thereafter; provided, that nothing contained in this act shall prevent the trial court or a justice of the supreme court from permitting an extension of time for the filing of a transcript in any appeal at any time in accordance with and upon written stipulation and agreement of the attorneys for all of the parties in interest.”

April 16, 1947, the appellant filed in this court the transcript on appeal. Accompanying it was a motion by appellant’s counsel which said:

“Your appellant applies for an order of this Court curing the default consisting of her failure to file with this Court transcript on appeal and judgment roll as aforesaid within the time allowed by the aforementioned order. This application is based upon the provision of O. C. L. A., 10-803 and 10-807, as amended by chapter 119, Oregon Laws of 1943, which permits the appellant with the consent of this court, for good canse shown, to cure a default other than failure to file a notice of appeal. In support of this application, there are submitted herewith the affidavit of Herbert M. Schwab, of attorneys for appellant, and the transcript on appeal, .judgment roll, and bill of exceptions * ®

Thus, there are two motions before us- — one by the respondent, which seeks a dismissal of the appeal, and the other by the appellant, which asks us to consider the transcript on appeal, notwithstanding its belated filing.

The affidavit of Mr. Schwab, which is mentioned in the words which we quoted from the appellant’s motion, concludes thus:

‘ ‘ The failure to file the transcript on appeal and judgment roll in this court within the time allowed, i. e., by March 25th, 1947, was due to neglect on my part, which I believe should be considered as excusable neglect, under the circumstances as set forth herein. ’ ’

Mr. Schwab’s affidavit quotes from correspondence and sets forth in other ways circumstances which indicate that if he failed to exercise due diligence in effecting a timely filing of the transcript, the neglect was not gross. The truthfulness of his affidavit has not been challenged, and we shall accept it as a correct portrayal of the facts. No one claims that the appellant is seeking to delay this appeal, nor is it contended that the failure to have filed promptly the transcript prejudiced the respondent. Seemingly, while the trancript lay uncalled for in the county clerk’s office, work was progressing upon the bill of exceptions and thus the neglect of the transcript did not engender delay-in the progress of the appeal.

The fact that Mr. Schwab’s office is in Portland, and this item of business is pending in Salem, are circumstances that account for some of the trouble. After the transcript was completed Mr. Schwab gave two directions concerning it, each of which was reasonable, but neither of which brought the document to the office of the clerk of this court. We believe that his inadvertence can be excused without prejudicing the respondent and without encouraging time-consuming carelessness in the prosecution of appeals. By reverting to Mr. Schwab’s affidavit we see that there has now been filed, not only the transcript on appeal, but also the bill of exceptions including a transcript of the evidence.

In a preceding paragraph we quoted subdivision 2 of amended § 10-807, O. C. L. A. Prior to its amendment the words which we quoted were preceded by the following:

“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, * *

That provision was repealed by the 1943 amendatory act. Before its amendment the first paragraph of § 10-807 set forth several requirements concerning the transcript and then said:

“After compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise.”

By virtue of that clause the transcript became regarded as a jurisdictional paper, and a failure to file it timely was fatal to the appeal. See subdivisions 21 and 27 of the annotation to § 10-807 in 2 O. C. L. A., and also State v. Stone, 178 Or. 268, 166 P. (2d) 980. But the clause just quoted is no longer a part of our laws; it was repealed by the 1943 amendment.

As is pointed out in Williams v. Ragan, 174 Or. 328, 143 P. (2d) 209, and in Pond v. Jantzen Knitting Mills, this day decided by ns, the amendment to §§ 10-803 and 10-807, O. C. L. A., by Oregon Laws 1943, chapter 119, substitute for the filing of the transcript the notice of appeal as the event which confers jurisdiction upon this court over the appealed cause. To avoid being misunderstood, we point out that a notice of appeal, in order to confer jurisdiction upon this court, must comply with the requirements of amended § 10-803, which are (1) an oral notice given in open court or in chambers must “be entered in the journal of the court”, and (2) a written notice must be signed, served and filed “with proof of service indorsed thereon with the clerk of the court.”

Oregon Laws 1943, chapter 119, besides amending § 10-807 in the details to which we have drawn attention, also amended § 10-803, O. C. L. A. Those amendments received attention in the Pond case. Among the changes wrought in § 10-803 by the 1943 act is the following:

“After the appellate court has acquired jurisdiction of the appeal in the manner hereinabove provided, the omission of a party to perform any of the acts herein required or within the time required shall be a cause for dismissal of the appeal, and the appellate court may, on motion of the respondent, dismiss the appeal; provided, however, the appellate court shall, upon good cause shown, relieve a party from his failure to comply with any of such provisions and may permit an amendment or performance of such act on such terms as may be just * * *.”

The purpose of the paragraph just quoted is not only to authorize this court to dismiss appeals in which an appellant is inexcusably subjecting the judgment creditor to delay, but also to enable this court to save from dismissal appeals prosecuted in good faith. The last clause of the paragraph takes into its embrace every act required of an appellant by amended § 10-803, including the filing of the transcript but excepting the giving of notice of appeal. Since the presentation of a bill of exceptions is governed by § 5-703, O. C. L. A., and is not within the purview of the term “acts herein required,” found in amended §10-803, the assuasive powers conferred upon this court by other parts of § 10-803 do not extend to the bill of exceptions: Williams v. Ragan, supra.

The question now occurs whether we should sustain the respondent’s motion and dismiss this appeal on account of the belated filing of the transcript, or whether we should accede to the appellant’s motion and relieve her from her tardiness.

The motion to dismiss the appeal was filed April 11 and, therefore, thirty days have not passed since services of the purported notice upon the appellant of her failure to have filed timely the transcript. Since thirty days have not passed, the clause of § 10-803 is not applicable to this case which says that if thirty days elapses after an appellant has been notified by the respondent of his failure to perform an act required by §§ 10-803 and 10-807, and if at the end of the thirty-day period the act still remains unperformed, the appeal shall be deemed abandoned. Since that clause is not applicable to this ease, the respondent evidently depends upon a preceding clause which says:

“The omission of a party to perform any of the acts herein required or within the time required shall he a cause for dismissal.”

The 1943 amendment is clearly intended to vest this court with wide discretionary power concerning the progress of appealed cases, but it is likewise apparent that the discretionary power is to he exercised only where “good cause” is shown hy an appellant who resists a motion to dismiss. The 1943 amendments were not intended to encourage procrastination.

If it appeared that the respondent was prejudiced through the inadvertance of appellant’s counsel, that fact would he entitled to consideration in the disposition of the two pending motions. Or if it appeared that the neglect concerning the transcript was accompanied with an absence of work upon other phases of the appeal, that fact would also he entitled to consideration at this point. But there is no claim of prejudice, and it affirmatively appears that, although the transcript was neglected, the hill of exceptions was completed in the interval. It seems clear that one purpose of the 1943 amendment is to authorize the court to save from dismissals appeals where the appellant’s inadvertent failure to perform an act required hy §§ 10-803 and 10-807 inflicted no prejudice upon the respondent. We accept the explanation tendered hy Mr. Schwab as reasonably satisfactory. We shall sustain the appellant’s motion and deny the respondent’s. The power which is given to us hy the 1943 amendment authorizes us to impose “such terms as may he just” when we rule in favor of an appellant who has been guilty of excusable neglect. We observe from the record that the respondent, concurrently with the presentation of her motion to dismiss, filed a transcript prepared hy the county clerk so as to afford a basis for this court’s action upon her motion. The transcript which she filed was the identical one required by § 10-807, and, therefore, the appellant should have filed it. In fact, the failure of the appellant to have filed it is the basis of the respondent’s motion to dismiss. The respondent should be reimbursed by the appellant for the cost of the transcript, and we order the appellant to make the reimbursement within ten days or suffer the dismissal of this appeal. We also observe from the record that the judgment attacked by this appeal was entered October 28,1946, and, therefore, more than six months have passed since that time. Six months must appear to the judgment creditor as an undue length of time for the preparation of no more than the notice of appeal, the undertaking and the bill of exceptions. An inspection of the record before ns induces a belief that the work of preparing the abstract of record and the appellant’s brief will be unattended with serious difficulties. The bill of exceptions submits only four exceptions; one concerns a nonsuit; another a directed verdict; and a third a motion for a new trial. Seemingly all three of those will be predicated upon the same principles of law. The fourth exception attacks an instruction. We shall take all of the foregoing into consideration in the event that the appellant should seek further time.

The respondent’s motion is denied; the appellant’s is sustained.