McKissick v. McKissick

174 P. 721, 93 Or. 644

• Court: Oregon Supreme Court
• Decided: September 21, 1918
• Status: Published

Opinions

McBRIDE, C. J.

This is a motion to dismiss an appeal, .the alleged grounds thereof being (1) that there was no service of a copy of the' undertaking upon the respondent, and (2) that the order appealed from was not an appealable order, being a matter wholly within the discretion of the trial court.

It appears from the record that upon the trial and final disposition of a divorce suit begun by plaintiff against the defendant, the court awarded the custody of a minor child of the parties to the plaintiff. Subsequently, defendant applied to the court for a modification of that portion of the decree giving the mother the custody of the child. His application being denied, he appealed to this court. Being unable to find plaintiff’s attorney at his office, defendant attempted to serve the undertaking by leaving a copy at his supposed residence. Plaintiff’s attorney did not in fact reside at the place indicated and the service was void. We are of the opinion that the appellant’s attorney acted in good faith in attempting to serve the undertaking as recited, and that the case comes fairly within the provisions of Section 550, subdivision 4, L. O. L., which is as follows:

“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. When a party in good faith gives due notice as hereinabove provided of an appeal from a ■ judgment, order, or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just.”

New undertaking filed September 21, 1918. Reporter.

Such is the holding in the case of Dowell v. Bolt, 45 Or. 89 (75 Pac. 714). In the present case appellant has asked leave to file an additional undertaking. We are of the opinion that an appeal lies from an order of the court granting or refusing to grant a change in the custody of infants: 14 Cyc. 814; Greenleaf v. Greenleaf, 6 S. D. 348 (61 N. W. 42).

The case of Pittman v. Pittman, 3 Or. 472, bears by analogy upon the matter here under consideration. In that case the defendant obtained a decree of divorce, which granted her the custody of ,a minor child and the appeal was from that portion of the decree only. It was held that an appeal would lie. Even if, as contended by respondent here, the order as to the custody of the child was a matter within the sound discretion of the court, that fact would not bar an appeal, as the appellant would still have the right to obtain the jurisdiction of this court as to whether or not such discretion had been abused.

The motion to dismiss will be denied, conditioned that appellant within twenty days from the date of this order, serve and file in this court a sufficient undertaking on appeal. In default of filing such undertaking within the time limited the appeal will be dismissed.

Denied Conditionally.

Department 1.

On November 7, 1917, at the suit of plaintiff, the Circuit Court of Multnomah County granted her a divorce from the defendant and gave her the care and custody of the minor daughter of the parties until the further order of the court, upon condition that the defendant may have the privilege of visiting the child at reasonable times and places, and with the further provision that he might have the child visit him at Portland, Oregon, with reasonable frequency by providing a safe and proper means of transportation and accommodations while in his care. 'By the decree he was required to. pay to the plaintiff a fixed sum as alimony and, further, to pay fifteen dollars/per month until further order of the court, for the maintenance and support of the child. On March 13, 1918, he filed a motion in the Circuit Court for a modification of the decree relieving bim from paying any further alimony, costs or attorneys’ fees as provided in the decree, and_ that he be given the care, custody and control of the minor child. On March 30, 1918, the Circuit Court heard the application and denied it. Prom this order the defendant appeals.

Aeeirmed. Por appellant there was a brief over the names of Mr. H. L. Ganoe and Mr: L. G. English, with an oral argument by Mr. Gmoe. Por respondent there was a brief and an oral argument by Mr. J. Le Boy Smith.