Bilyeu v. Smith , 18 Or. 335 ( 1890 )

Thayer, C. J.

Tbe undertaking on appeal to tbe circuit court from the justice’s court was executed in accordance with section 2182, chapter 13, Code, which provides that an undertaking for stay of proceedings in such a case must be in such an amount as may be deemed sufficient to compensate the plaintiff for the use or profits of the claim during the pendency of the appeal, and for costs and disbursements of the action; and, we think, was sufficient not only as a stay, but for the purposes of an appeal A further clause in the undertaking that the appellant would pay all costs and disbursements that might be awarded against him on the appeal would not have augmented the obligation it already imposed. The amount of the undertaking, as determined by the justice, must be deemed sufficient to cover the costs and disbursements of the action, as well as to compensate the plaintiff for the use or profits of the claim during the pendency of the appeal, which would necessarily include all costs and disbursements that might be awarded against the appellant on the appeal,” The law does not require a vain thing. Counsel for respondents contend, however, that the terms “costs and disbursements of the action, ’’ as used in said § 2182 of the Code, only include the costs and disbursements of the trial in the justice’s court. If the legislature had so intended it would have said that, or have used language which would have conveyed that meaning, but when it requires, as a condition of an appeal to another court where the action will be tried anew, that the appellant give an undertaking for costs and disbursements of the action, it must certainly mean the costs and disbursements which will accrue in the trial of the action, as well as those which have already accrued.

An appeal and new trial in such case is only a continuance of the trial of the same action. Besides, the motion to dismiss the appeal did not specify the grounds for its dismissal with such certainty as would justify the court in entertaining it. "Where counsel attempt to take advantage of a mere technicality they should be held to the observance of technical rules. In a motion of that character counsel are required to specify definitely and with certainty •the point of irregularity complained of. The motion filed •to dismiss the appeal to this court must be denied. The ground upon.which the motion is founded is altogether'too critical.' If the paper which has come here with the transcript is a copy of the undertaking to which the objection is made, there are no reasonable grounds upon which to found it. The undertaking is ample to cover any costs, disbursements and damages which will be incurred on the ■appeal, if the $500 mentioned therein is regarded as a limitation of the amount of the liability of the surety. The costs and disbursements in this court should not at the utmost amount to $100, and the other sum of '$750 was • intended to include the damages, But what is there before this court to show that the supposed copy of undertaking, which seems to have gotten into the transcript and. been brought here, is a copy of the undertaking given upon the appeal, and to which the clerk refers in his certificate to the transcript. It is in no manner authenticated, and it being here with the transcript is no evidence that it is genuine. The undertaking is nb part of the transcript, although the clerk, in' certifying to the transcript regard•ing the filing of the undertaking, etc., as required by sub- ■ division 1 of § 541 of the Code, might have certified a ■ copy of the undertaking itself, as many of the clerks of ■ circuit courts are in the habit of doing, and it would have been considered a compliance with his duty in that respect; but instead of adopting that course he chose to follow the directions of the Code, and the respondent’s counsel having failed to produce evidence as to the kind of undertaking which was filed, the court is left entirely ignorant upon the subject so far as judicial knowledge is concerned. - The objection to the undertaking, as presented to this • court, is toó indefinite and uncertain to be considered.

The judgment appealed from will therefore be reversed and the case remanded to the circuit court, with directions to try the issues between the parties as found by the pleadings therein.