Stark v. Stark , 128 Or. 683 ( 1929 )

IN BANC.

MOTION ALLOWED. This suit is before the court on a motion to dismiss the appeal. It is a contested divorce suit. A decree was granted plaintiff. The State of Oregon acting through the district attorney's office, Multnomah County, appealed. The decree of divorce was rendered and entered September 25, 1928. November 15, 1928, notice of appeal from the decree was given by the district attorney through J.L. Hammersly, deputy. The notice of appeal was served on both parties to the suit. Defendant has not appealed. December 15, 1928, an order was entered in the Circuit Court granting to the state unto and including January 10, 1929, within which time to file a transcript. The transcript was filed herein January 5, 1929. The state has not appeared any further, nor has it asked for additional time in which to further appear. The state has, therefore, abandoned its appeal: Rule 16, 123 Or. 687, Laws 1927, chap. 316; Crumbley v. Crumbley, 94 Or. 617 (186 P. 423).

The decree was in favor of plaintiff and against the defendant. Defendant not having appealed is conclusively presumed to be satisfied with the decree: Davis v. Davis, 123 Or. 667 (263 P. 914); Adams v. Kennard, 122 Or. 84, 96 (222 P. 1092, 227 P. 738, 253 P. 1048); Ontario Advancement Co. v.Stevens, 113 Or. 564, 568 (231 P. 127); Spitzer v."Annette Rolph" et al., 110 Or. 461, 464 (218 P. 748, 223 P. 253); Crumbley v. Crumbley, above. Defendant now seeks permission to file a typewritten brief and styles himself appellant. By virtue of the authorities above cited defendant has no standing in this court at all.

The motion to dismiss the appeal is allowed.