Bank of Commerce v. Bertrum , 55 Or. 349 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

1. Plaintiff sued to restrain defendant from disposing of a two-thirds interest in certain logs, lumber, and other property, in Union County, upon which it claimed to have a mortgage given by one W. R. Kivette. The property mortgaged was partnership property, owned by a firm composed of Kivette and the defendant; Kivette having a two-thirds interest and defendant a one-third. The complaint also charged that defendant had sold and converted to his own use portions of the mortgaged property to the injury of plaintiff, and prayed for a receiver and an accounting.

Decided January 25, 1910. [106 Pac. 444.]

Plaintiff had a decree in the court below, but contends that the court erred in allowing defendant the sum of $375 for services in managing the property. Upon an examination of the testimony in the whole case, we do not think the allowance inequitable.

This case was argued as though there had been a cross-appeal by defendant; but no transcript of the notice of appeal or undertaking was filed by defendant, and no extension of time for so doing appears anywhere in the record; nor has any fee for filing such transcript been paid to the clerk. If any appeal was attempted, it must be deemed to have been abandoned. Defendant, not having perfected his appeal, must be held to be satisfied with the decree of the court below. Shook v. Colohan, 12 Or. 239 (6 Pac. 503) ; Shirley v. Burch, 16 Or. 83 (18 Pac. 351: 8 Am. St. Rep. 273) ; Thornton v. Krimbel, 28 Or. 271 (42 Pac. 995) ; Cooper v. Thomason, 30 Or. 162 (45 Pac. 296) ; Goldsmith v. Elwert, 31 Or. 539 (50 Pac. 867) ; Board of Regents v. Hutchinson, 46 Or. 57 (78 Pac. 1028.)

The decree of the lower court is affirmed, and defendant shall recover costs in this court Affirmed.