Ferrari v. Beaver Hill Coal Co. , 54 Or. 210 ( 1909 )

Motion for Rule on Clerk to Supply.Record.

Opinion by

Mr. Chief Justice Bean.

1. On February 3, 1908, a motion to dismiss the appeal in this case, on the ground that notice thereof had not been served or filed within the time required by statute, was, by stipulation of the parties, submitted on written briefs. Pending the disposition thereof, the appellants suggested to the court a diminution of the record, and asked for a rule on the clerk below to send up a notice of appeal, which, it is alleged, was served and filed within the statutory time, but which is not included in the transcript. The allowance of this motion is resisted because it comes too, late, and reliance is had on Cross v. Chichester, 4 Or. 114; Alberson v. Mahaffey, 6 Or. 412; State v. McKinmore, 8 Or. 208. The technical rule announced in these cases that an application for permission to correct an error in the transcript must be made before the motion to dismiss the appeal is brought on for hearing, was practically overruled in Elwert v. Norton, 34 Or. 567 (51 Pac. 1097: 59 Pac. 1118) ; Mendenhall v. Elwert, 36 Or. 375 (52 Pac. 22: 59 Pac. 805), and Fleischner v. Bank of McMinnville, 36 Or. 553 (54 Pac. 884: 60 Pac. 603: 61 Pac. 345), and the matter is now regulated by rule 35, 50 Or. 587 (91 Pac. xii), which provides that:

Decided May 12, 1908. Messrs. Blake & Liljeqvist, for the motion. Mr. John S. Coke and Mr. A. J. Sherwood, contra.

“For the purpose of correcting any error or defect in the transcript from the court below, either party may suggest the same, in writing, to this court, and, upon good cause shown, obtain an order that the proper clerk certify up the whole or part of the record, as may be required.”

The court has for years adhered to a liberal practice in matters of this kind, so that neither party to an appeal shall be denied a right to be heard because of some defect in the transcript which can be cured.

The motion will, therefore, be allowed, and the rule issued as prayed for.

Motion to Supply Becord Allowed.

On Motion to Dismiss.

[95 Pac. 498.]

Per Curiam:

This is a motion to dismiss an appeal, because (1) the notice of appeal is entitled in the circuit court of the United States for the county of Coos; (2) the notice was served and filed on a day appointed by the Governor as a legal holiday, and (3) the undertaking on appeal was not served and filed within the time required by law. None of these reasons are sound.

2. The notice of appeal intelligently referred to the action in which the appeal was taken and is valid and effective, notwithstanding the mistake in the name of the court in the title. Section 545, B. & C. Comp. That was evidently a mere clerical error, and does not affect the merits in any way.

Decided June 8, 1909. Mr. J. M. Blake, for the motion. Mr. A. J. Sherwood, Mr. Ralph W. Wilbur, and Mr. John D. Goss, contra.

3. A legal holiday, other than Sunday, affects only those acts and transactions which are designated in the law establishing the day. The statute, providing for legal holidays, declares that no court shall be open nor any judicial business be transacted on such day, except for certain specified purposes, and under the rule above stated all other acts are legal. Service of notice of appeal is not judicial business within the meaning of the statute, and such a notice may, therefore, be served on a legal holiday. 21 Cyc. 443.

4. The undertaking was not served and filed within time, but the judge of the court below, on motion of appellant, permitted such undertaking to be filed after the expiration of time allowed by law, and we cannot review his reasons for doing so on motion to dismiss an appeal. Motion Denied.