Strickler v. Portland Ry., L. & P. Co.

144 P. 1193, 79 Or. 526, 1916 Ore. LEXIS 138

Opinions

Mr. Justice Moore

delivered the opinion of the court.

1. This is a motion to dismiss an appeal on the ground that the notice thereof was not served within 60 days from the time the judgment was rendered. It appears from the affidavits of plaintiff’s counsel that the cause having been tried and submitted to the jury they returned a verdict herein for the defendant on December 5, 1913, at 5:25 p. m., and after the clerk’s office had been closed for the day. The certificate of the clerk shows that the judgment was entered on the following day at 2:10 p. m. The notice of appeal was served and filed February 4, 1914. The statute prescribing the time of rendering and recording judgments as far as involved herein reads:

“If the trial be by jury, judgment shall be given by the court in conformity with the verdict and so entered by the clerk within the day on which the verdict is returned”: Section 201, L. O. L.

In Casner v. Hoskins, 64 Or. 254, 281 (128 Pac. 841, 850), in referring to such enactment, it is said:

“This clause of the statute was probably designed to create a lien as soon as possible after a verdict is rendered, but whether the provision is mandatory or ministerial is not deemed to be important, for the term ‘within the day’ evidently means within 24 hours, otherwise a verdict returned just before midnight would be ineffectual unless a judgment could be entered thereon before the close of the last moment of that day. Such a rule would be a travesty on justice. ’ ’

The notice was served within the time limited, and this being so, the motion is denied.

Motion Denied.