Wolf v. City Railway Co.

85 P. 620, 50 Or. 64, 1907 Ore. LEXIS 178

• Court: Oregon Supreme Court
• Decided: August 20, 1907
• Status: Published

Opinions

On Motion to Dismiss the Appeal.

Per Curiam:

Motion to dismiss an appeal because the transcript was not filed within the time allowed by law. The judgment from which the appeal was taken was rendered on October 7, 1905, and a notice of appeal thereupon given in open court. Thereafter and on the- same day an order was made by the trial judge enlarging the time 60 days in which to file the transcript. On October 17, 1905, the undertaking on appeal was filed. On December 2d, a further order was made extending the time in which to file the transcript, and similar orders were subsequently made, each within the time allowed by the previous order, until February 26, 1906, when the transcript was filed in this court. The statute provides, in effect, that upon the appeal being perfected the appellant shall, within 30 days, or within such an extension of time as' the trial court or judge thereof, or the Supreme Court or. a justice thereof, may allow, file with the clerk of this court a transcript or such abstract as the rules of the court may require, but that the order enlarging the time “shall be made within the time allowed to file the transcript”: B. & C. Comp. § 553. It is argued in support of the motion to dismiss that, under this statute, an order enlarging the time in which to file a transcript cannot be made by the trial court or judge thereof until after the appeal is perfected by the filing of an undertaking and the expiration of the time in which to except to the sureties thereon, and that such is the meaning of the words “within the time allowed to file the transcript,” and therefore the order of October 7th was null and void, and as no transcript was filed within 30 days after the appeal was perfected, nor an order obtained within that period extending the time in which to file the transcript, the appeal should be dismissed. But this is too technical a construction of the statute to meet with our approval. The act of 1899 (Laws 1899, pp. 227, 229), which includes said Section 553 and is now in force governing the procedure on appeal, was designed to simplify such procedure, and to remove many of the technicalities with which ic was hedged about prior to that time. It should, therefore, receive a liberal construction to accomplish the end intended. The provision that an order enlarging the time “shall be made within the time allowed to file the transcript” simply means that it should be made before the appellant is in default: Tallmadge v. Hooper, 37 Or. 503, 508 (61 Pac. 349). And there is no valid reason why the trial court or judge thereof should not make such an order after the notice of appeal has been given, and before the appeal is perfected' by the filing of an undertaking. Motion Denied.

Decided 20 August, 1907. 91 Pac. 460. For appellant there was a brief over the names of O. F. Paxton and William P. Lord, with oral arguments by Mr. Lord and Mr. Ephraim Baynard Seabroolc. For respondent there was a brief with oral arguments by Mr. Alexander Bernstein and Mr. D. Solis Cohen.