State v. Dickerson

Oregon Supreme Court

State v. Dickerson

106 P. 790, 55 Or. 390, 1910 Ore. LEXIS 107

CourtOregon Supreme Court

DecidedFebruary 8, 1910

StatusPublished

Cited by7 cases

This text of 106 P. 790 (State v. Dickerson) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Dickerson, 106 P. 790, 55 Or. 390, 1910 Ore. LEXIS 107 (Or. 1910).

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Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. Section 1479, B. & C. Comp., is as follows:

“Upon appeal being taken, the clerk of the court where the notice of appeal is filed must, within five days thereafter, or such further time as such court or the judge thereof may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment roll, to the clerk of the Supreme Court.”

Section 1480 provides:

“If the appeal be irregular in a substantial particular, but not otherwise, the appellate court may, on motion of the respondent and notice to the defendant, order it to be dismissed.”

Section 1481 provides:

“The appellate court may also, upon like motion and notice, order the appeal to be dismissed if the return be not made as provided in section 1479,” etc.

Filing a transcript within the time allowed by the law is jurisdictional, and unless it appears that it is filed within five days after the appeal is perfected, or, if the court shall have allowed further time, then within the time so allowed, the appeal will be dismissed. But, if failure to so file the transcript by the clerk is not in any way due to the negligence of the appealing party, this court will order the transcript to be sent up after the expiration of the time allowed by law.

2. It does not appear that the clerk was even requested to send up the transcript or that his attention was directed to it in any way, nor was any effort made within the five days to have the time for filing the transcript extended. The sole excuse offered is that counsel was waiting to have the bill of exceptions settled. The very fact that an unsigned bill of exceptions was among the papers on file in his office, would probably induce the clerk to believe that the transcript was not yet ready for transmission to this court.

[393]*393This case is fairly within the rule announced by this court in State v. Williams, 55 Or. 143 (105 Pac. 716) and must be dismissed. Dismissed.

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Mr. Justice McBride

delivered the opinion of the court.

1. Section 1479, B. & C. Comp., is as follows:

“Upon appeal being taken, the clerk of the court where the notice of appeal is filed must, within five days thereafter, or such further time as such court or the judge thereof may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment roll, to the clerk of the Supreme Court.”

Section 1480 provides:

“If the appeal be irregular in a substantial particular, but not otherwise, the appellate court may, on motion of the respondent and notice to the defendant, order it to be dismissed.”

Section 1481 provides:

“The appellate court may also, upon like motion and notice, order the appeal to be dismissed if the return be not made as provided in section 1479,” etc.

Filing a transcript within the time allowed by the law is jurisdictional, and unless it appears that it is filed within five days after the appeal is perfected, or, if the court shall have allowed further time, then within the time so allowed, the appeal will be dismissed. But, if failure to so file the transcript by the clerk is not in any way due to the negligence of the appealing party, this court will order the transcript to be sent up after the expiration of the time allowed by law.

2. It does not appear that the clerk was even requested to send up the transcript or that his attention was directed to it in any way, nor was any effort made within the five days to have the time for filing the transcript extended. The sole excuse offered is that counsel was waiting to have the bill of exceptions settled. The very fact that an unsigned bill of exceptions was among the papers on file in his office, would probably induce the clerk to believe that the transcript was not yet ready for transmission to this court.

[393]*393This case is fairly within the rule announced by this court in State v. Williams, 55 Or. 143 (105 Pac. 716) and must be dismissed. Dismissed.

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Bluebook (online)

106 P. 790, 55 Or. 390, 1910 Ore. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dickerson-or-1910.

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