Wolf v. Smith

6 Or. 73

• Court: Oregon Supreme Court
• Decided: December 15, 1876
• Status: Published

Opinion

By the Court, McArthur, J.:

This case was originally commenced in the county court of Polk county, where a trial was had, which resulted in a verdict and judgment for appellant. From that judgment the respondent appealed to the circuit court. When the case was called affidavits were filed showing the loss of the papers, and under section 503 of the code an order was made permitting the substitution of copies. Pursuant to said order, what are described as “substantial copies of the pleadings in said action,” were filed. A trial was then had, which resulted in favor of respondent. The affidavits alluded to set forth that a notice of appeal and an undertaking had been filed, and were among the lost papers. The jurisdiction of the court depended upon the service of a notice of appeal, and the filing of the original thereof, with proof of service indorsed thereon, and the filing of an undertaking.

There was no copy of either substituted for the lost originals, hence there is nothing in the record to show that the court, had jurisdiction. The fact that the parties appeared, and that the cause was thereupon heard ánd determined in the circuit court, cannot be taken as curing the defect. In Oliver v. Harvey, 5 Or. 361, it was held that even a waiver of filing the notice of appeal by stipulation is not equivalent to filing the same, and that consent cannot confer jurisdiction. The appeal is jurisdictional, and must be taken in the mode prescribed by the code (29 Cal. 161), the appellant must bring into the appellate court a perfect record (27 Ind. 1), and where the record is lost or destroyed copies of every paper and pleading necessary to give jurisdiction, and to enable the court to properly hear and determine the case, must be supplied.

Judgment reversed.