Schultz v. Walrad

179 P. 904, 92 Or. 315, 1919 Ore. LEXIS 116

• Court: Oregon Supreme Court
• Decided: April 15, 1919
• Status: Published

Opinions

PER CURIAM.

1. This is a motion to dismiss an appeal.

Judgment was entered against defendant on December 5, 1918. Notice of appeal was served on January 20,1919. Before the notice was served, and on January 14, 1919, the defendant applied for, and secured from the Circuit Court, an order extending the time within which to file the transcript on appeal until March 15, 1919. No other extension was granted and plaintiff moves to dismiss the appeal.

The court had ho jurisdiction to extend the time for filing a transcript on appeal until a notice of appeal had been served: Wolf v. City Ry. Co., 50 Or. 64 (85 Pac. 620, 91 Pac. 460, 15 Ann. Cas. 1181). This court, as will be observed from a perusal of the above cited case, has been exceedingly liberal in its construction of the statute permitting an extension of time for filing transcripts in this court, but to so construe it as to permit a party to have such extension before he has even given notice of .his intention to appeal, would be invoking a liberality beyond all reason and beyond the intent of the statute. As said in Kelley v. Pike, 17 Or. 330 (20 Pac. 685):

-“An appeal from the Circuit Court to this-court, under our system .of practice, is a new proceeding.”

It would seem that at least the first step required in such proceeding, which consists in the service and filing of a notice, should be taken, before the Circuit Court has authority to authorize an extension of time to file a transcript.

The motion to dismiss is sustained.

Appeal Dismissed.