Spokane Merchants' Assn. v. Gollihur

257 P. 812, 122 Or. 146, 1927 Ore. LEXIS 148

• Court: Oregon Supreme Court
• Decided: July 12, 1927
• Status: Published

Opinion

BELT, J.

In this case the decree of the Circuit Court was rendered May 7, 1926. On June 5th of that year the notice of appeal and undertaking were served and filed. Owing to objections to the sufficiency of the surety, a new undertaking was served and filed June 21,1926. No objection was taken to the surety on the last undertaking. The appeal, therefore, became perfected five days thereafter, or at the close of the day June 26th. The appellant did not within thirty days thereafter, as required by Section 554, Or. L., file with the clerk of this court any transcript. Nor does the record disclose any order extending the time in which so to do. The time for making such an order expired thirty days after perfecting the appeal. No transcript was filed here until July 31, 1926. It is clear, therefore, that this court never acquired jurisdiction.

On October 8th the respondent moved to dismiss the appeal and affirm the decree. On December 28, 1926, the motion was overruled with leave to renew the same at the hearing. Involving as it does the jurisdiction of this court, it is never waived and the order of December 28th amounts merely to a continuance of the motion for further consideration. The filing of the transcript within the time prescribed by statute or as the same may regularly be extended is jurisdictional. Being without jurisdiction, it is the duty of this court to dismiss the appeal even upon its own motion.

It is so ordered and the appeal is dismissed.

Appeal Dismissed.