Mitchell v. Coach

153 P. 478, 83 Or. 45

Opinions

Mr. Justice Benson

delivered the opinion of the court.

This is a motion to dismiss the appeal upon the grounds: (1) That the appellant has failed to serve or file his notice of appeal within the time prescribed by law; (2) that the undertaking on appeal was not filed within the time prescribed by the statute.

1. The notice of appeal as it appears in the transcript contains the following proof of service:

“State of Oregon,

Coos County — ss.

“I hereby certify that I served this notice of appeal upon C. F. McKnight, attorney for plaintiffs, at Coos County, Oregon, on the 19th day of July, 1915.

“A. S. Hammond,

“Attorney for Defendant.”

The notice is also indorsed as filed on July 19, 1915, which is conceded to be within the statutory time, the judgment having been entered on May 20, 1915; but plaintiff seeks by affidavits to show that as a matter of fact it was not filed until July 20th. This court has held that the transcript as filed here cannot be contradicted or impeached by extraneous evidence: Rodman v. Manning, 50 Or. 507 (93 Pac. 366).

2. As to the date of filing the undertaking, it is sufficient to say that it was served upon plaintiff on August 9, 1915,. and filed- August 10, 1915, while the motion attacking it was not filed until December 3, 1915. Since the filing of the undertaking is not jurisdictional (Dowell v. Bolt, 45 Or. 90, 75 Pac. 714), it falls within the influence of rule 23 of this court (56 Or. 623, 117 Pac. xii), which says:

“All motions must be filed within ten days after a party or his counsel obtain knowledge of an alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules of this court. Any neglect to file a motion within such time will be deemed a waiver of all defects, except matters of jurisdiction.”

3. Referring again to the proof of service of the notice of appeal, the defendant has filed a counter-motion for leave to amend the same to conform to the fact. The case comes strictly within the rule declared in the case of Barbre v. Goodale, 28 Or. 468 (38 Pac. 67, 43 Pac. 378), and the amendment is therefore allowed.

The motion to dismiss is denied.

Motion Denied.