Phillips v. Elliott

25 P.2d 557, 17 P.2d 1119, 144 Or. 694, 1933 Ore. LEXIS 55

• Court: Oregon Supreme Court
• Decided: September 20, 1933
• Status: Published

Opinions

PER CURIAM.

Plaintiffs, respondents herein, move to dismiss this appeal on the ground that the notice of appeal was not served and filed within 60 days after the rendition of the judgment appealed from as provided by section 7-503, Oregon Code 1930. The judgment was entered on July 25, 1932, and the notice of appeal was filed with service indorsed thereon on September 24, 1932.

Section 7-109, Oregon Code 1930, provides that the time in which an act is to be done, as provided in the code, shall be computed by excluding the first day and including the last, unless the last day falls upon Sunday, Christmas, or other non-judicial day, in which ease the last day shall also be excluded.

It is contended by plaintiffs that by excluding the day on which the judgment was rendered and including the day on which the notice of appeal was filed a period of 61 days had elapsed and, hence, the notice of appeal was filed one day too late. Whatever may be our present view as to the meaning of section 7-109, the question is settled adversely to plaintiffs’ contention by U. S. National Bank v. Shefler, 77 Or. 579 (143 P. 51); Be Andersen’s Estate, 101 Or. 94 (188 P. 164); Re Application of Riggs, 105 Or. 531 (207 P. 175); Steeves v. Steeves, 139 Or. 261 (9 P. (2d) 815).

Motion overruled.

E. L. Elliott, of Klamath Falls (H, C. Merryman, of Klamath Falls, on the brief), for appellant. William Qanong, of Klamath Falls, for respondents.