Morrison v. Hall

104 P. 963, 55 Or. 243, 1909 Ore. LEXIS 206

Opinion

Per Curiam.

1.

Rule 4 requires that, within 20 days after the transcript is filed in a civil case, the appellant shall serve and file his printed abstract of the record (50 Or. 571: 91 Pac. viii) and for a noncompliance with this rule the judgment appealed from may be affirmed or dismissed. Swanson v. Leavens, 26 Or. 561 (40 Pac. 230) ; Close v. Close, 28 Or. 108 ( 42 Pac. 128.) The default is admitted, and in extenuation it is alleged that it was not intentional, but was an oversight of defendant’s attorney growing out of a press of business in other directions forced upon him by the serious illness of his associate in business. A negligent oversight or failure to file the abstract within time caused by pressure of business does not excuse the default under the rule announced by this Court in Schafer v. Beecher, 101 Pac. 899. As the default occurred, and the motion to affirm was filed, prior to the recent amendment of the rules governing the remedy in such matters, no waiver of the default can be asserted.

2. As to the assessment of damages because of an appeal alleged to have been taken in bad faith, the case made is not of that clear and convincing character as would authorize the infliction of the statutory penalty.

The motion to affirm the judgment is allowed, but otherwise it is denied. Affirmed.