Moorehouse v. Weister

95 P. 497, 56 Or. 126, 1908 Ore. LEXIS 190

• Court: Oregon Supreme Court
• Decided: May 12, 1908
• Status: Published

Opinions

Decided May 12, 1908.

On Motion to Dismiss.

[95 Pac. 497.]

1.

Per Curiam :

This is a motion to dismiss an appeal because the transcript was not filed within the time required by law. The notice of appeal and undertaking were served and filed on January 4, 1903. Respondent excepted to the sufficiency of the surety, and appellant thereupon gave notice that it would produce him before the clerk of the court for justification on January 11th. The surety appeared at the time stated, and was examined under oath touching his sufficiency; his examination being taken in shorthand. The respondent requested that his testimony be reduced to writing and signed by him, and the shorthand notes were subsequently extended, and on January 25th the surety appeared before the clerk, signed his testimony, and on that date the clerk found the surety sufficient, annexed the examination to the undertaking, and indorsed his allowance thereon. The transcript was filed in this court on the 22d of February, or within 30 days thereafter. The statute (B. & C. Comp. 1901, § 549) provides that, from the expiration of the time .allowed to except to the surety in an undertaking on an appeal, or from the justification thereof, if excepted to, the appeal shall be deemed perfected, and within 30 days thereafter the appellant shall file a transcript or abstract with the clerk of this court (section 553). When the sureties on an undertaking for an appeal are excepted to, the transcript must thereafter be filed within 30 days (unless the time is extended in the manner provided by law) after the justification of the sureties, and the question for dismission is whether the justification is at the time the surety appears before the officer for examination or at the time the examination is completed, and the undertaking approved. Under the statute the justification of a surety consists in his examination before the officer at a time and place specified, the reduction of such examination to writing, and signing of the same by the surety, when requested, and a finding that the surety is sufficient by the officer before whom the examination is had, which is evidenced by the indorsement on the undertaking. Sections 271, 272. Until these several acts are performed, the justification, in our opinion, is not complete, or the appeal perfected.

The transcript was therefore filed within time, and the motion to dismiss is overruled. Motion Denied.