On Motion to Dismiss Appeal.
Mr. Chief Justice Bean
delivered the opinion.
1. Where there are several respondents, and some of them except to the sufficiency of the sureties on the undertaking for an appeal, the appeal is not to be deemed abandoned as to the other respondents, although the transcript is not filed within thirty days from the expiration of the time allowed them to except to the sureties. It will be a sufficient compliance with the statute if it is filed within thirty days from the justification of the sureties on the exceptions filed by their corespondents.
2. Where a cause originates in the county court, and, on appeal to the circuit court is tried on the testimony given in the county court, it is not necessary, on appeal to this court, that the evidence be identified by the certificate of the circuit judge. It is enough if it is identified by the certificate of the county judge.
3. It is no valid objection to an order granting an application of an executor or administrator to be substituted in place of a deceased party that it was made on the day notice thereof was served upon the attorneys for the opposite party, as notice in such case is believed to be unnecessary, unless required by the court: Hill’s Ann. Laws, §§ 38, 524.
4. Where sureties on an appeal bond are excepted to, the appellant is not'bound to produce them for justification, but may abandon the attempted appeal, and take a new one: Holladay v. Elliott, 7 Or. 483; Van Auken v. Dammeier, 27 Or. 150 (40 Pac. 89).
5. Where the sureties on an undertaking for an appeal, when excepted to, attempt to justify, but fail, the circuit court may, under section 537 of the statute, allow a new undertaking to be filed.
Decided 22 April, 1902.
For appellant there was a brief over the names of Webster and Frank Holmes, with an oral argument by Mr. William II. Holmes.
For respondents there was a brief over the names of Sherman, Gondit & Park and Geo. G. Bingham, with an oral argument by Mr. Bingham and Mr. A. O. Gondit.
6. Where an appellant omits to assign errors in his abstract, through mistake or inadvertence, he will be permitted to amend upon a proper showing: Fleischner v. Bank of McMinville, 36 Or. 553 (60 Pac. 603).
7. Where, after exceptions to the sufficiency of sureties on an undertaking for an appeal, the appellant dies pending their justification, and subsequently, and after the substitution of his executor or administrator, the sureties are produced and justify, after notice to the respondent, this court, on a motion to dismiss the appeal, will not assume to determine the regularity of the proceedings, but will allow the appellant to file a new undertaking here, when he indicates a willingness to do so. The motion to dismiss the appeal is denied, and appellant is allowed ten days in which to prepare and file assignments of error and a new undertaking.
Motion Overruled.
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