Schmeer v. Schmeer

17 P. 864, 16 Or. 243, 1888 Ore. LEXIS 40

Opinion

Per Curiam.

Prior to the last term of this court the appellant appealed from the decree in this cause, and omitted to file the transcript in this court within the time fixed by the Code. Thereafter and during the term the respondent brought into this court copies of the decree, notice of appeal with proof of service, and the undertaking, and moved for an order of affirmance, which was allowed, of course, and the same was sent by mandate to the court below.

The appellant served another notice of appeal and gave an undertaking, and has now brought the record into this court, and upon these facts the respondent has moved to dismiss this attempted appeal. When a party perfects an appeal and then abandons it his right of appeal is exhausted, the power over the subject is functus officio, and cannot be exercised the second time. (Brill v. Meek, 20 Mo. 358.) When a party attempts to appeal but fails to observe some formality by reason of which he does not obtain the benefit of an appeal, the rule is otherwise, and he may give another notice and perfect his appeal.

The decree has already been affirmed, and cannot be questioned by this proceeding.

Let the appeal be dismissed.