McCargar v. New Amsterdam Casualty Co.

Oregon Supreme Court

McCargar v. New Amsterdam Casualty Co.

209 P. 478, 105 Or. 308, 1922 Ore. LEXIS 74

CourtOregon Supreme Court

DecidedOctober 10, 1922

StatusPublished

Cited by2 cases

This text of 209 P. 478 (McCargar v. New Amsterdam Casualty Co.) 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

McCargar v. New Amsterdam Casualty Co., 209 P. 478, 105 Or. 308, 1922 Ore. LEXIS 74 (Or. 1922).

Pincite

Opinion

PER CURIAM.

This is a motion to dismiss an appeal. The plaintiff recovered judgment against the defendant on the twelfth day of April, 1922. The defendant filed its notice of appeal on June 7, 1922, and its undertaking on appeal on June 17, 1922. On June 29, 1922, a stipulation was entered into between the attorneys for the respective parties, wherein it was agreed that the defendant and appellant should have “up to and including the first day of August, 1922, within which to procure and file its abstract of record and do any and all things necessary to perfect its appeal to the Supreme Court of Oregon.”

No order of court was ever taken in accordance with that stipulation. Moreover, no transcript was filed in this court within the provisions of the stipulation. However, transcript was filed by defendant on September 19, 1922, long after the statutory period [309]*309had elapsed, and subsequent to the expiration of the time agreed upon.

That the filing of a transcript within the time allowed by law, or an extension of that time which may be granted by “the trial court or the judge thereof, or the Supreme Court or a justice thereof” is jurisdictional, see Kelley v. Pike, 17 Or. 330 (20 Pac. 685); Burchell v. Averill Machinery Co., 55 Or. 113 (105 Pac. 403); Emery v. Brown, 63 Or. 264 (127 Pac. 682); Gross v. Gage, 77 Or. 422 (149 Pac. 939, 151 Pac. 655); Russell v. Smith, 96 Or. 629 (190 Pac. 715); Peterson v. Beals et al., 102 Or. 245 (201 Pac. 727).

The defendant having failed to file with the clerk of the appellate court a transcript or such an abstract as the law or the rules of the appellate court require, in accordance with the provisions of Section 554, Or. L., and having failed to have its time extended in ■ which tó file such record, the appeal must be deemed abandoned.

The motion to dismiss is granted, and the judgment appealed from is hereby affirmed.

Motion Allowed and Judgment Aeeiemed.

Mr. Chief Justice Burnett took no part in this decision.

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PER CURIAM.

This is a motion to dismiss an appeal. The plaintiff recovered judgment against the defendant on the twelfth day of April, 1922. The defendant filed its notice of appeal on June 7, 1922, and its undertaking on appeal on June 17, 1922. On June 29, 1922, a stipulation was entered into between the attorneys for the respective parties, wherein it was agreed that the defendant and appellant should have “up to and including the first day of August, 1922, within which to procure and file its abstract of record and do any and all things necessary to perfect its appeal to the Supreme Court of Oregon.”

No order of court was ever taken in accordance with that stipulation. Moreover, no transcript was filed in this court within the provisions of the stipulation. However, transcript was filed by defendant on September 19, 1922, long after the statutory period [309]*309had elapsed, and subsequent to the expiration of the time agreed upon.

That the filing of a transcript within the time allowed by law, or an extension of that time which may be granted by “the trial court or the judge thereof, or the Supreme Court or a justice thereof” is jurisdictional, see Kelley v. Pike, 17 Or. 330 (20 Pac. 685); Burchell v. Averill Machinery Co., 55 Or. 113 (105 Pac. 403); Emery v. Brown, 63 Or. 264 (127 Pac. 682); Gross v. Gage, 77 Or. 422 (149 Pac. 939, 151 Pac. 655); Russell v. Smith, 96 Or. 629 (190 Pac. 715); Peterson v. Beals et al., 102 Or. 245 (201 Pac. 727).

The defendant having failed to file with the clerk of the appellate court a transcript or such an abstract as the law or the rules of the appellate court require, in accordance with the provisions of Section 554, Or. L., and having failed to have its time extended in ■ which tó file such record, the appeal must be deemed abandoned.

The motion to dismiss is granted, and the judgment appealed from is hereby affirmed.

Motion Allowed and Judgment Aeeiemed.

Mr. Chief Justice Burnett took no part in this decision.

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Bluebook (online)

209 P. 478, 105 Or. 308, 1922 Ore. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccargar-v-new-amsterdam-casualty-co-or-1922.

Opinion

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