Decided 7 February, 1898.
On Motion to Dismiss Appeal.
[52 Pac. 22.]
Per Curiam.
1. This is a motion to dismiss an appeal. The facts pertinent to the inquiry are that on June 19, 1897, the trial court decreed that plaintiff re[377]*377cover from the defendants J. B. and Carrie M. Elwert the sum of $485.50, with interest from September, 1896, and $15.50, as costs and disbursements, being the amount of a judgment obtained by him against them in the Circuit Court of Multnomah County ; that he recover from Carrie M. Elwert the sum of $242.10, with interest from April 19, 1896, and $17.10 as costs and disbursements, being the amount due on a judgment obtained by him against her in a justice’s court of said county, a transcript of which had been duly filed in the proper office within the time prescribed by law, so as to make it a judgment of said circuit court; that he recover from the defendants J. B., Carrie M., and C. P. Elwert his costs and disbursements in this suit, taxed at $147.80 ; that a deed executed by J. B. to C. P. Elwert, March 12, 1894, conveying lot 4 and the south five feet of lot 3 in block 218 in the City of Portland, and a deed executed by Carrie M.'to C. P. Elwert, conveying lot 5 in block 2 in the City of East Portland, and lots 2 and 3 in block 72 in Caruthers’ Addition to the City of Portland, be canceled; and that an assignment of certain notes and mortgages severally made by J. B. and Carrie M. to C. P. Elwert, and a chattel mortgage executed by Carrie M. to the same person, be set aside. The notice of appeal, omitting the title, address, and signatures, is as follows : “You will please take notice that the defendants, and each of them, in the above entitled suit, hereby appeal to the supreme court of this state from the judgment, order, and decree against J. B. Elwert and Carrie M. Elwert for $470 and $15.50, and against Carrie M. Elwert for the further sum of $242.10, the first with interest from September 8,1896, and the second with interest from April 9, 1896, and for costs taxed at $170.20 in this suit; said decree also setting aside a deed made by J. B. Elwert to C. P. Elwert, dated March 12,1894, conveying lot 4 and south five feet [378]*378of lot 3 in block 218, City of Portland ; also setting aside deed from Carrie M. Elwert to C. P. Elwert, dated March 7, 1896, conveying lots 2 and 3 in block 72 in Caruthers’ Addition to Portland ; and also setting aside the transfers and assignments'of notes and mortgages to said C. P. Elwert, mentioned in said decree and the complaint of plaintiff, and decreeing some and all of said conveyances and transfers in fraud of creditors of J. B. Elwert and Carrie M. Elwert — said decree therein made and entered in the said circuit court, on the 19th day of June, 1897, in favor of the plaintiff in said-suit, and against said defendants and each of them, and'from the whole thereof.”
It is contended by plaintiff’s counsel that this notice does not describe the decree of which the defendants complain with the degree of certainty necessary for identification, and hence does not confer upon this court jurisdiction of the cause. It will be observed that, in referring to the amount recovered by plaintiff from J. B. and Carrie M. Elwert, it is stated therein to be $470 and $15.50, the sum of which is $485.50, the amount so awarded ; but there is an error in the date from which the interest is to be computed, and a failure to allude to the costs and disbursements recovered in the action. The notice correctly describes the amount so recovered from Carrie M. Elwert, but states that it bears interest from April 9, 1896, — an error in the date from which the interest is to be computed ; and it also fails to mention the costs and disbursements. The abstract of the record shows that plaintiff recovered from the defendants J. B., Carrie M., and C. P. Elwert the costs and disbursements of this suit, taxed at $147.80, while the notice of appeal seems to describe a judgment against J. B. and Carrie M. Elwert only, for the costs, taxed at $170.20, — a failure to designate one of the parties defendant, and a misstatement of the amount awarded; but it appears from what is de[379]*379nominated an “Additional Transcript,” recently filed, that objection was made to certain items of cost, whereupon plaintiff filed a supplemental cost bill, and the clerk passing upon the same retaxed the items thereof, and found the amount to be $170.20. It is true, the notice of appeal recites that the decree was given in favor of the plaintiff, and against said defendants, and each of them, which would seem to correct any error in failing to name C. P. Elwert as a party against whom the costs and disbursements were taxed. While the appellants failed to mention lot 5 in block 2 in the City of East Portland, they have correctly described in the notice of appeal all the other real property affected by the decree, and have also accurately stated the day upon which such decree was given. The question presented for consideration is whether, under these circumstances, the notice of appeal is effectual to confer jurisdiction. The statute provides that the notice shall state that the appellant appeals from the judgment or decree of the circuit court, or some specified part thereof (Hill’s Ann. Laws, § 537, subd. 1), in construing which it has been repeatedly held that such notice must describe with reasonable certainty the decree complained of, the court in and the time at which such decree was given, the names of the parties to the suit, and the fact that one or more of them intend to appeal to the supreme court: Lewis v. Lewis, 4 Or. 209; Christian v. Evans, 5 Or. 253; Weiss v. Commissioners of Jackson County, 8 Or. 529; Neppach v. Jordan, 13 Or. 246 (10 Pac. 341); Ream v. Howard, 19 Or. 491 (24 Pac. 913). In Crawford v. Wist, 26 Or. 596 (39 Pac. 218), the court, in speaking of the sufficiency of a notice of appeal, says : “The tendency of the court, as indicated by recent decisions, is to construe notices of appeal liberally, and hold them sufficient if, by fair construction or reasonable intendment, the court can say that the appeal is taken [380]*380from the judgment in a particular case.” Tested by this rule, we think the notice of appeal, though defective in many particulars, describes the decree complained of with reasonable certainty, and also conforms to the other requirements prescribed by the decisions of this court upon the subject.
For appellants there were briefs over the names of Dell Stuart, and Cox, Cotton, Teal & Minor, with an oral argument by Mr. Lewis B. Cox.
2. Several objections urged to the undertaking on appeal seem to be well taken, in view of which we deem it expedient to require defendants to file a new one. It is true, they have not asked leave to do so, nor presented any affidavits tending to show that the failure to file a proper undertaking was occasioned through any mistake on their part. It has been held that an appellant cannot, under Hill’s Ann. Laws, § 537, subd. 4, obtain leave to file a new undertaking on appeal without making it appear to the satisfaction of the court that the omission to file a sufficient undertaking within the time allowed by law was occasioned through mistake (Pencense v. Burton, 9 Or. 178 ; De Lashmutt v. Sellwood, 10 Or.
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Decided 7 February, 1898.
On Motion to Dismiss Appeal.
[52 Pac. 22.]
Per Curiam.
1. This is a motion to dismiss an appeal. The facts pertinent to the inquiry are that on June 19, 1897, the trial court decreed that plaintiff re[377]*377cover from the defendants J. B. and Carrie M. Elwert the sum of $485.50, with interest from September, 1896, and $15.50, as costs and disbursements, being the amount of a judgment obtained by him against them in the Circuit Court of Multnomah County ; that he recover from Carrie M. Elwert the sum of $242.10, with interest from April 19, 1896, and $17.10 as costs and disbursements, being the amount due on a judgment obtained by him against her in a justice’s court of said county, a transcript of which had been duly filed in the proper office within the time prescribed by law, so as to make it a judgment of said circuit court; that he recover from the defendants J. B., Carrie M., and C. P. Elwert his costs and disbursements in this suit, taxed at $147.80 ; that a deed executed by J. B. to C. P. Elwert, March 12, 1894, conveying lot 4 and the south five feet of lot 3 in block 218 in the City of Portland, and a deed executed by Carrie M.'to C. P. Elwert, conveying lot 5 in block 2 in the City of East Portland, and lots 2 and 3 in block 72 in Caruthers’ Addition to the City of Portland, be canceled; and that an assignment of certain notes and mortgages severally made by J. B. and Carrie M. to C. P. Elwert, and a chattel mortgage executed by Carrie M. to the same person, be set aside. The notice of appeal, omitting the title, address, and signatures, is as follows : “You will please take notice that the defendants, and each of them, in the above entitled suit, hereby appeal to the supreme court of this state from the judgment, order, and decree against J. B. Elwert and Carrie M. Elwert for $470 and $15.50, and against Carrie M. Elwert for the further sum of $242.10, the first with interest from September 8,1896, and the second with interest from April 9, 1896, and for costs taxed at $170.20 in this suit; said decree also setting aside a deed made by J. B. Elwert to C. P. Elwert, dated March 12,1894, conveying lot 4 and south five feet [378]*378of lot 3 in block 218, City of Portland ; also setting aside deed from Carrie M. Elwert to C. P. Elwert, dated March 7, 1896, conveying lots 2 and 3 in block 72 in Caruthers’ Addition to Portland ; and also setting aside the transfers and assignments'of notes and mortgages to said C. P. Elwert, mentioned in said decree and the complaint of plaintiff, and decreeing some and all of said conveyances and transfers in fraud of creditors of J. B. Elwert and Carrie M. Elwert — said decree therein made and entered in the said circuit court, on the 19th day of June, 1897, in favor of the plaintiff in said-suit, and against said defendants and each of them, and'from the whole thereof.”
It is contended by plaintiff’s counsel that this notice does not describe the decree of which the defendants complain with the degree of certainty necessary for identification, and hence does not confer upon this court jurisdiction of the cause. It will be observed that, in referring to the amount recovered by plaintiff from J. B. and Carrie M. Elwert, it is stated therein to be $470 and $15.50, the sum of which is $485.50, the amount so awarded ; but there is an error in the date from which the interest is to be computed, and a failure to allude to the costs and disbursements recovered in the action. The notice correctly describes the amount so recovered from Carrie M. Elwert, but states that it bears interest from April 9, 1896, — an error in the date from which the interest is to be computed ; and it also fails to mention the costs and disbursements. The abstract of the record shows that plaintiff recovered from the defendants J. B., Carrie M., and C. P. Elwert the costs and disbursements of this suit, taxed at $147.80, while the notice of appeal seems to describe a judgment against J. B. and Carrie M. Elwert only, for the costs, taxed at $170.20, — a failure to designate one of the parties defendant, and a misstatement of the amount awarded; but it appears from what is de[379]*379nominated an “Additional Transcript,” recently filed, that objection was made to certain items of cost, whereupon plaintiff filed a supplemental cost bill, and the clerk passing upon the same retaxed the items thereof, and found the amount to be $170.20. It is true, the notice of appeal recites that the decree was given in favor of the plaintiff, and against said defendants, and each of them, which would seem to correct any error in failing to name C. P. Elwert as a party against whom the costs and disbursements were taxed. While the appellants failed to mention lot 5 in block 2 in the City of East Portland, they have correctly described in the notice of appeal all the other real property affected by the decree, and have also accurately stated the day upon which such decree was given. The question presented for consideration is whether, under these circumstances, the notice of appeal is effectual to confer jurisdiction. The statute provides that the notice shall state that the appellant appeals from the judgment or decree of the circuit court, or some specified part thereof (Hill’s Ann. Laws, § 537, subd. 1), in construing which it has been repeatedly held that such notice must describe with reasonable certainty the decree complained of, the court in and the time at which such decree was given, the names of the parties to the suit, and the fact that one or more of them intend to appeal to the supreme court: Lewis v. Lewis, 4 Or. 209; Christian v. Evans, 5 Or. 253; Weiss v. Commissioners of Jackson County, 8 Or. 529; Neppach v. Jordan, 13 Or. 246 (10 Pac. 341); Ream v. Howard, 19 Or. 491 (24 Pac. 913). In Crawford v. Wist, 26 Or. 596 (39 Pac. 218), the court, in speaking of the sufficiency of a notice of appeal, says : “The tendency of the court, as indicated by recent decisions, is to construe notices of appeal liberally, and hold them sufficient if, by fair construction or reasonable intendment, the court can say that the appeal is taken [380]*380from the judgment in a particular case.” Tested by this rule, we think the notice of appeal, though defective in many particulars, describes the decree complained of with reasonable certainty, and also conforms to the other requirements prescribed by the decisions of this court upon the subject.
For appellants there were briefs over the names of Dell Stuart, and Cox, Cotton, Teal & Minor, with an oral argument by Mr. Lewis B. Cox.
2. Several objections urged to the undertaking on appeal seem to be well taken, in view of which we deem it expedient to require defendants to file a new one. It is true, they have not asked leave to do so, nor presented any affidavits tending to show that the failure to file a proper undertaking was occasioned through any mistake on their part. It has been held that an appellant cannot, under Hill’s Ann. Laws, § 537, subd. 4, obtain leave to file a new undertaking on appeal without making it appear to the satisfaction of the court that the omission to file a sufficient undertaking within the time allowed by law was occasioned through mistake (Pencense v. Burton, 9 Or. 178 ; De Lashmutt v. Sellwood, 10 Or. 51); but this rule applies only to some patent omission in the execution of the instrument, such as a failure to indorse thereon the affidavits of the sureties, or to file the instrument, etc., and can have no application to a difference of opinion as to what constitutes a performance of the statutory requirements. The motion will, however, be allowed, unless the defendants, within twenty days, file a new undertaking. . Motion Overruled.