Union Central Life Insurance v. Deschutes Valley Loan Co.

8 P.2d 587, 3 P.2d 536, 139 Or. 222

• Court: Oregon Supreme Court
• Decided: March 29, 1932
• Status: Published

Opinions

BEAN, C. J.

Bespondent moves to dismiss this appeal upon the grounds: first, that appellant failed to file in this court a transcript or abstract of record within the time provided by section 7-507, Oregon Code 1930; second, that appellant failed to file its undertaldng on appeal within ten days after the service of notice of appeal.

The trial court entered a judgment in this cause on May 29, 1931. The appellant had sixty days after that date in which to serve and file notice of appeal. Section 7-503, subd. 5, Oregon Code 1930. The notice of appeal was served June 18,1931, and filed with the proof of service endorsed thereon July 10, 1931. Section 7-507 provides that, upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such abstract as the law or rules of the appellate court may require, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof and of the undertaking on appeal. Subdivision 4 of section 7-503, Oregon Code 1930, provides, in part, that:

“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 of (or) judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as mhy be just. ”

An undertaking was prepared and served on respondent’s attorney on June 18,1931, before the notice of appeal was filed. The appellant admits that this was irregular and ineffective. Respondent-.conténds that the transcript should have been filed within thirty days :from June 24, 1931, or on July 24, 1931. Appellant cites Taylor v. Lapham, 41 Or. 479 (69 P. 439). The decision in this case has been quoted and followed in Everding & Farrell v. Gebhardt Lbr. Co., 90 Or. 209, 211 (175 P. 611, 176 P. 186), and also in Streby v. State Industrial Accident Commission, 107 Or. 322 (215 P. 586).

It will be noticed that the statute makes the serving and filing of the notice of appeal indispensable to give this court jurisdiction. See Oliver v. Harvey, 5 Or. 260. The filing of the notice of appeal is an essential. act in order to give the appellate court jurisdiction, and the notice of appeal was not effective until the same was filed.

The filing of an undertaking is not jurisdictional. This is too well-settled to require authorities, and the statute makes ample provision for an amendment or performance of such act, which has been omitted. After the filing of the notice of appeal, and on July 27, 1931, the appellant filed the required transcript of the record with the exception of the irregularity in regard to the undértaking on appeal. The appellant also on that date filed a printed abstract of record, as provided by the rules, and within thirty days from July 10, 1931, appellant filed its brief with affidavit of service endorsed thereon. The undertaking could not.be filed before the notice of appeal and was irregularly served. All of the proceedings mentioned were .taken, to perfect the appeal within the- time allowed for the appeal. The good faith of appellant-is indicated by the record.

George H. Brewster, of Redmond? for appellant. H. H. DeArmond, of Bend, for respondent.

The cause should not be dismissed, but the appellant’s motion to serve upon respondent and file a substituted undertaking on-appeal, on account of the error and ..mistake of serving the undertaking on appeal 22 days before the notice of appeal was fiied, should be allowed. It is so ordered, and the motion to dismiss is denied.