Miller v. Arenz

193 P. 439, 103 Or. 592

• Court: Oregon Supreme Court
• Decided: November 23, 1920
• Status: Published

Opinions

McBRIDE, C. J.

— This is a motion to dismiss an appeal. A decree was rendered against defendant Jacob Arenz on August 3, 1920, and on August 26th he served and filed a notice of appeal therefrom. On September 3, 1920, he applied to the Circuit Court for an extension of thirty days from the date of the order, within which to prepare, serve, and file an undertaking on appeal, which was finally filed on September 27, 1920. The plaintiff moves to dismiss the appeal for the reason that the undertaking was not filed within ten days from the filing of the notice of appeal.

. Subdivision 2 of Section 550, Or. L., 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 ór his attorney shall except to the sufficiency of the sureties in the undertaking, or he shall be deemed to have waived his right thereto.”

Subdivision 4 of the same section 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.”

We have frequently held that subdivision 2 of Section 550 is mandatory, and that failure to comply therewith is fatal to the appeal unless excused by the court. Where the delay has been shown to have been the result of a mistake either of law or fact, such omissions have usually been excused. Where the appeal has been otherwise prosecuted in good faith, the disposition of this court has been to allow the undertaking to be filed, as it is by no means our policy to dismiss appeals for merely technical reasons. In the present case the appellant, within ten days after seasonable service and filing of his notice of appeal, applied to the court for an “extension of time within which to file an undertaking, thereupon the court granted such extension, and within the time prescribed in such order an undertaking, unexceptionable in form and not excepted to in substance, was filed and the appeal otherwise perfected.

Subdivision 2, Section 550, Or. L., quoted above, if it stood alone, would be mandatory and conclusive against defendant’s right of appeal, but the effect of subdivision 4 is to take away its mandatory and jurisdictional character, and to retain in the court jurisdiction of the appeal, provided the party appealing complies later, with some requirement omitted by mistake. In order to take advantage of the exception therein contained there must have existed at the time of the application a mistake in not filing the undertaking in time, and the statutory time must have elapsed. Such was not the condition when the application for further time was made. The mistake that the appellant made was in supposing that the court could extend the time for filing the undertaking, in advance of any default. The law does not permit an indiscriminate extension of time to file an undertaking, but, in its solicitude for the privilege of every litigant to have his case heard upon appeal, it allows him to correct such error as may arise from forgetfulness or even misconception of the procedure necessary to preserve his legal rights, if it appears that he has in good faith served and filed his notice of appeal, and attempted in like good faith to comply with the requirements of the statute as he understood them.

1, 2. We are of the opinion that the court was without authority to extend the time, at the date such extension was made, hut from an examination of the record we are clearly of the opinion that the failure to tile the undertaking was the result of an erroneous view that the time might be extended, this being borne out by the fact that within the time as extended the defendant in fact filed an undertaking apparently sufficient. It is also to be noted that this is the first time this precise question has been raised here; that in fact the practice of granting extensions under like circumstances has been, if not common, at least not altogether unusual; and that there are cases now pending where a like mistake has been made. Under these circumstances we are inclined to excuse the mistake, as we are authorized to do by virtue of the provisions of subdivision 4, of Section 550, Or. ■ L. Appellant offers to file now the undertaking required by law. He will be permitted within ten days to serve such undertaking and file it here, and the plaintiff will be allowed five days thereafter to except to the sufficiency of the surety. In default of the service and filing of such undertaking within the time prescribed, the appeal will be dismissed.

It may be added that, having now declared the law, thereby removing any misconception which may have existed in the minds of members of the bar as to its proper interpretation, we shall not be inclined to view defaults of like character, arising in appeals hereafter taken, with any great degree of leniency.

Motion to Dismiss Denied.