Peck v. Ross , 139 Or. 323 ( 1932 )

In Banc. Respondent moves to dismiss this appeal for the reason that this court has no jurisdiction thereof. It is not specified wherein jurisdiction is wanting, but from the argument we find that it is claimed by respondent that appellant should have filed an undertaking under section 5-221, Oregon Code 1930. The statute relating to forcible entry and detainer provides, in part, that if judgment be rendered against the defendant for the restitution of the real property described in the complaint, no appeal shall be taken by the defendant from such judgment until he shall, in addition to the undertaking now required by law upon appeal, give an undertaking to the adverse party for the payment to the plaintiff of twice the rental value of the real property, of which restitution shall be adjudged until final judgment. This undertaking is held to be jurisdictional. Zelig v. Blue PointOyster Co., 54 Or. 543 (104 P. 193).

The present suit was brought for the purpose, among others, of rescinding a lease of certain real property and also for the possession of the real property and certain personal property, and for an accounting for rents thereof. It is not an action of forcible entry and detainer.

Section 7-504, Oregon Code 1930, provides that the appellant shall give an undertaking for damages, costs and disbursements, which may be awarded against him on appeal. Such undertaking does not stay the proceedings, unless the undertaking further provides:

"2. If the judgment or decree appealed from be for the recovery of the possession of real property, for a partition thereof, or the foreclosure of a lien thereon, that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if such judgment or decree or any part thereof be affirmed, the appellant will pay the value of the use and occupation of such property, so far as affirmed, from the time of the appeal until the delivery of the possession thereof, not exceeding the sum therein specified, to be ascertained and tried by the court or judge thereof;

"3. If the decree appealed from require the transfer or delivery of any personal property, unless the things required to be transferred or delivered be brought into court, or placed in the custody of such officer or receiver as the court may appoint, that the appellant will obey the decree of the appellate court. The amount of such undertaking shall be specified therein, and be fixed by the court or judge thereof." § 7-504, Oregon Code 1930.

The transcript of record shows that the appellant in the suit filed an undertaking, as provided by section 7-504. The appeal should not be dismissed. We think the undertaking in this case is governed by section 7-504, and, so far as appears, that it is sufficient.

It is shown from the record that respondent gave a counterbond and that the appellant does not retain possession of the personal property and real estate.

There is a further motion to dismiss, filed for the reason that the transcript of testimony filed herein does not contain all of such testimony. The transcript of testimony has attached to it the certificate of the official court reporter to the effect that it is a full, true and exact copy of all the testimony submitted in the cause. The certificate of the honorable trial judge shows that there is a large portion of the testimony, which was introduced in the case, not contained in the transcript of testimony. It is not claimed by the respondent that it was the fault of appellant that a full transcript of the testimony was not filed.

The transcript of testimony filed herein will therefore be ordered to be returned to the clerk of the circuit court for Deschutes county, in order that the circuit court may take such proceedings as may be necessary to require E.M. Broderick, official court reporter, to prepare and file a complete transcript of testimony in said cause, appellant to pay for such additional transcript of testimony. It appears from the record that the time has been extended several times for the preparation of such transcript of testimony.

The motions to dismiss the appeal are denied.