Moon v. Richelderfer

108 P. 178, 56 Or. 246, 1910 Ore. LEXIS 166

Opinion

Mr. Justice Eakin

delivered the opinion of the court.

On July 13, 1909, plaintiffs recovered a judgment against defendant for $200 and costs, and on October 22, 1909, defendant served and filed with the clerk of the circuit court a notice and undertaking on .appeal, with proof of service duly indorsed thereon. No transcript was filed in the Supreme Court within the time allowed by law therefor. Thereafter defendant abandoned the appeal. On January 8, 1910, defendant served a second notice and undertaking on .appeal, which was filed in the circuit court on January 15, 1910. The transcript was filed in this court March 9, 1910. On March 11, 1910, plaintiffs filed a motion to dismiss the appeal for the reasons that it has not been taken in the manner or within the time provided by law, and that the Supreme Court has no jurisdiction to entertain the appeal.

When an appeal is perfected, it cannot be abandoned thereafter and a second appeal taken. The right of appeal is lost if the transcript is not filed within the time allowed by law or an extension thereof. This is jurisdictional. Section 553, B. & C. Comp. Nestucca Wagon Road Co. v. Landingham, 24 Or. 439 (33 Pac. 983); Davidson v. Columbia Timber Co., 49 Or. 577 (91 Pac. 441); Harrington v. Snyder, 53 Or. 573 (101 Pac. 392.)

The appeal is dismissed. Dismissed.