Fisher v. Tomlinson ( 1901 )

On Motion to Dismiss Appeal.

Mr. Cheep Justice Wolverton

delivered the opinion.

The respondents, except the Northwest Door Company, moved to dismiss the appeal herein, and they assign as a reason therefor that the transcript was not filed with the clerk of this court within thirty days from the- date on which the appeal was perfected. A notice of appeal, directed to John Manning, E. P. Morcum, W. T. Slater, and W. M. Kaiser, attorneys for all the defendants, showing due acceptance of service thereof by John Manning, “one of attorneys for said defendants and respondents,” on October 6, 1899, was, together with an undertaking on appeal, filed with the clerk of the court below October 7, 1899. Subsequently another notice was served, all of the defendants except the Northwest Door Company accepting service thereof November 7, 1899, by John Manning, their attorney, and the Northwest Door Company, by H. A. Cornell, its president. This notice, together with a new undertaking, was filed with the clerk November 9, 1899. No transcript was filed in this court until more than thirty days after the time for excepting to the sureties on the first undertaking. It is claimed that John Manning was never the attorney of record for the Northwest Door Company, and was without authority to accept service of the notice of appeal for said company, and, as a matter of fact, such acceptance was made through inadvertence, and it was for this reason the second notice was served. The question is presented, therefore, whether the appeal was perfected by the service and filing of the first notice and undertaking. If so, this appeal should be dismissed; otherwise, not: Nestucca Wagon Road Co. v. Landingham, 24 Or. 439 (33 Pac. 983). If the Northwest Door Company was a necessary party to the appeal =(and we must conclude that it was, being made a party defendant in the original suit, and no showing or contention having been made by the other respondents to the contrary), then the appeal was not perfected, for the very good reason that the other respondents would have had a right to its dismissal because the notice was not served upon the company, being an adverse party. Mr. Chief Justice Kelly said in Holladay v. Elliott, 7 Or. 483: “We hold that a party appellant may abandon an attempted appeal when he discovers that he has given an imperfect notice, or when it is inconvenient or impossible for the surety to justify in case of exception to his sufficiency.” To the same effect, see, also, Schmeer v. Schmeer, 16 Or. 243 (17 Pac. 864). It is clear that plaintiffs filed an imperfect notice in the first instance. They had a right, therefore, to abandon the attempted appeal, serve another notice, and perfect their appeal through the latter instead of the former. The transcript having been filed within thirty days of the completion of the appeal upon the latter notice, the motion to dismiss will be denied. Motion Overruled.

Decided 25 November, 1901. For appellants there was a brief over the names of Chas. J. Schnabel and Henry St. Bayner, with an oral argument by Mr. St. Bayner. For respondents there was a brief and an oral argument by Messrs. John Manning, E. P. Morcom, Wm. M. Kaiser, and Woodson T. Slater.