Sutton v. Sutton

150 P. 1025, 78 Or. 9, 1915 Ore. LEXIS 6

Opinions

In Banc.

■ Mr. Justice McBeide

delivered the opinion of the court.

The plaintiff brought a suit against defendant for divorce, who answered with a cross-complaint, asking that he be decreed a divorce from plaintiff. Upon the trial there was a decree in favor of defendant, from which plaintiff appeals. The undertaking given by plaintiff complied in form and substance with the statute, except that by a clerical error the undertaking provided that:

“Appellant will pay all damages, costs, and disbursements which may be awarded against the defendant on the appeal.”

1, 2. Defendant’s counsel filed a motion to dismiss the appeal on account of the insufficiency of the undertaking, but subsequently consented that plaintiff might file a new undertaking, and 'one was filed conditioned that plaintiff would pay all damages, costs and disbursements which might be adjudged against her on the appeal, “not to exceed $100. ’’ Defendant’s counsel moved to dismiss this appeal on account of the limitation as to the amount of the penalty. Plaintiff presents a cross-motion for leave to file a new undertaking, and presents an undertaking complete in every respect, except that the affidavit omits these words required by statute: ‘ ‘ That I am not a counselor or attorney at law, clerk of any court, or any other officer of any court’ ’ — which renders it insufficient. Section 551, L. O. L., provides:

“The undertaking of the appellant shall be given * * to the effect that the appellant will pay all damages, costs, and disbursements which may be-awarded against him on the appeal. ’ ’

The undertaking, having specifically limited the liability of the surety to $100, was therefore insufficient : State v. McKinmore, 8 Or. 207; Sanborn v. Fitzpatrick, 51 Or. 459 (91 Pac. 540). Section 550, L. O. L., as amended by Chapter 319, G-eneral Laws of 1913, provides:

“When a party in good faith gives due notice as hereinabove provided of an appeal from a judgment, order or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided, in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just.”

The mistake in the undertaking was unintentional, and, the case being here with the briefs filed and ready to be set for hearing, it ,ymuld be an injustice to dismiss the appeal on account of a defect in the undertaking, which we believe the plaintiff will readily correct by presenting an undertaking complying completely with the statute. We will give her one more opportunity to do this, and an order will be entered allowing plaintiff 10 days in which to file a properly verified undertaking, in default of which the appeal will be dismissed.

Conditionally Allowed.