O'Connor v. Towey ( 1914 )

In Banc.

Mr. Justice McNary

delivered the opinion of the court.

1. This is a motion to dismiss an appeal. The first reason assigned goes to the insufficiency of the evidentiary record, in this: That the record filed “does not contain all the evidence introduced upon the trial of the above-entitled cause, nor sufficient thereof to enable the court to review the entitled cause.” This is not a ground for the dismissal of an appeal from a decree. The only penalty visited upon appellant who is responsible for such a situation is the refusal of the court to consider any matter other than the sufficiency of the pleadings: Wyatt v. Wyatt, 31 Or. 534 (49 Pac. 855); Morrison’s Estate, 48 Or. 614 (87 Pac. 1043).

2. Another ground assigned in support of the motion is that the abstract of record does not contain the findings of fact, conclusions of law, notice of and an undertaking on appeal. This is not necessary. The transcript contains these various records and documents, which is conformable to the practice prescribed by the code in Section 554, L. O. L., as amended by the Laws of 1913, page 618.

3. Still another ground of assignment questions the sufficiency of the undertaking on appeal, in this: That it is not signed by the appellant, but is signed by two sureties who guarantee the fulfillment of those obligations prescribed by Section 551, L. O. L. The statute does not require the appellant to sign an undertaking. He is bound by the judgment, and the purpose of the undertaking is simply to assure respondent that appellant will pay all damages, costs, and disbursements which may be awarded against him on the appeal, and which guaranty comes not from the plaintiff, but through the medium of the sureties who sign his bond: Joan Drouilhat v. John Rottner, Surety, 13 Or. 493 (11 Pac. 221); Elliott v. Bozorth, 52 Or. 391 (97 Pac. 632).

One other reason is given why the appeal should be dismissed, but we deem it unimportant.

The motion to dismiss this appeal must be disallowed. Motion Denied.

[Note.-—See statement of the case where appeal was dismissed without costs.—Reporter.]