VALLEY CONCRETE PIPE CO. v. City of Albany

Oregon Supreme Court

VALLEY CONCRETE PIPE CO. v. City of Albany

303 P.2d 503, 300 P.2d 411, 215 Or. 666

CourtOregon Supreme Court

DecidedApril 1, 1959

StatusPublished

Cited by5 cases

This text of 303 P.2d 503 (VALLEY CONCRETE PIPE CO. v. City of Albany) 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.

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VALLEY CONCRETE PIPE CO. v. City of Albany, 303 P.2d 503, 300 P.2d 411, 215 Or. 666 (Or. 1959).

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PER CURIAM.

The plaintiff recovered judgment on 7 February 1955. The time for filing transcript and bill of excep[667]*667tions was extended by successive orders “until and to” 13 June 1956. The appellant has filed no short transcript in this court, hut the respondent, pursuant to Rules 30 and 33 of this court, has filed the short transcript, and now moves to dismiss the appeal and affirm the judgment.

Pursuant to a motion and affidavit of appellant the circuit court entered an order extending the time within which to file a transcript on appeal and hill of exceptions until and to 13 August 1956. Motion, affidavit and order all hear the clerk’s stamp, “Filed June 14, 1956”. Respondent argues that the application for extension of time as shown by the file marks was not served and filed within the time allowed to file transcripts, hut was in fact one day late. Appellant relies upon the affidavit of the deputy clerk of the circuit court to the effect that the motion, affidavit and proposed order were presented to him on 13 June and that after securing the signature of the judge to the proposed order extending time on the 14th he stamped all three instruments “Filed June 14, 1956”.

It is unnecessary to decide whether there is a sufficient showing that the motion was filed within the time allowed or was one day late. This court has jurisdiction of the appeal. ORS 19.030(3). It is within the discretionary power of this court to relieve appellant from its failure, if any, and to permit appellant to file the transcript within the time allowed by the order of the circuit court dated 14 June. Therefore the time for filing the transcript is extended to and until 13 August 1956.

The motion to dismiss the appeal is denied. We have no occasion to pass on the question whether the order extending time to file a hill of exceptions was within the power of the circuit court under the provi[668]*668sions of ORS 19.100, which, provides that “A proposed bill of exceptions may be tendered by presenting it * * * within 60 days after the entry of the judgment, or within such, further time as may be granted by order of the court if application is made during the said period of 60 days or within any extension that may he granted Whether the order extending the time for presenting the bill of exceptions is or is not valid, would be irrelevant on the motion to dismiss the appeal.

[670]*670Asa L. Lewelling and L. N. Brown, of Salem, for the motion.

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PER CURIAM.

The plaintiff recovered judgment on 7 February 1955. The time for filing transcript and bill of excep[667]*667tions was extended by successive orders “until and to” 13 June 1956. The appellant has filed no short transcript in this court, hut the respondent, pursuant to Rules 30 and 33 of this court, has filed the short transcript, and now moves to dismiss the appeal and affirm the judgment.

Pursuant to a motion and affidavit of appellant the circuit court entered an order extending the time within which to file a transcript on appeal and hill of exceptions until and to 13 August 1956. Motion, affidavit and order all hear the clerk’s stamp, “Filed June 14, 1956”. Respondent argues that the application for extension of time as shown by the file marks was not served and filed within the time allowed to file transcripts, hut was in fact one day late. Appellant relies upon the affidavit of the deputy clerk of the circuit court to the effect that the motion, affidavit and proposed order were presented to him on 13 June and that after securing the signature of the judge to the proposed order extending time on the 14th he stamped all three instruments “Filed June 14, 1956”.

It is unnecessary to decide whether there is a sufficient showing that the motion was filed within the time allowed or was one day late. This court has jurisdiction of the appeal. ORS 19.030(3). It is within the discretionary power of this court to relieve appellant from its failure, if any, and to permit appellant to file the transcript within the time allowed by the order of the circuit court dated 14 June. Therefore the time for filing the transcript is extended to and until 13 August 1956.

The motion to dismiss the appeal is denied. We have no occasion to pass on the question whether the order extending time to file a hill of exceptions was within the power of the circuit court under the provi[668]*668sions of ORS 19.100, which, provides that “A proposed bill of exceptions may be tendered by presenting it * * * within 60 days after the entry of the judgment, or within such, further time as may be granted by order of the court if application is made during the said period of 60 days or within any extension that may he granted Whether the order extending the time for presenting the bill of exceptions is or is not valid, would be irrelevant on the motion to dismiss the appeal.

[670]*670Asa L. Lewelling and L. N. Brown, of Salem, for the motion.

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303 P.2d 503, 300 P.2d 411, 215 Or. 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valley-concrete-pipe-co-v-city-of-albany-or-1959.

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