Dibble v. David Hodes Co. , 132 Or. 596 ( 1930 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In Banc. This case comes on to be heard on motion to dismiss the appeal. The action was instituted by plaintiff to recover money on a contract and property belonging to defendant was attached. Bond was given to release the attachment by defendant with two sureties. Judgment was rendered in favor of plaintiff and entered January 25, 1929; notice of appeal was served January 28; the undertaking on appeal was served on the next day. An order was made extending the time in which to file the transcript in this court to the 30th day of March, 1929. Plaintiff moves to dismiss the appeal on the ground that the order extending the time in which to file the transcript was premature. Another order was entered on the 26th day of March, 1929, further extending the time in which to file the transcript here to April 10, 1929. Defendant urges that since the original order was made before the appeal was perfected it was premature and, therefore, inefficacious. He further urges that, since the later order extending the time was not made within 30 days from the time the appeal was perfected, this court never acquired jurisdiction of the case.

The sureties who executed the bond to release the attachment also appear as sureties on the undertaking on appeal. In the judgment appealed from said sureties are judgment debtors. Plaintiff contends, therefore, that the undertaking is insufficient. Plaintiff relies on the cases of Walker v. Fireman's FundIns. Co., 122 Or. 179 (257 P. 701); Sitton v. Goodwin, 119 Or. 74,79 (248 P. 163); Tallmadge v. Hooper, 37 Or. 503 (61 P. 349, 1127). Plaintiff's argument is based upon a technical construction of the word "within" as used in section 554, Or. L. The motion is ruled by White v. East Side Mill Co., 84 Or. 224 (161 P. 969, 164 P. 736); Vincent v. First Nat. Bank, 76 Or. 579 (143 P. 1100, 149 P. 938); Wolf v. City Railway Co., 50 Or. 64 (85 P. 620, 91 P. 460, 15 Ann. Cas. 1181); French v. C.F. T. Co., 116 Or. 532 (241 P. 1010). In those cases the word "within" is given the meaning "not beyond." The policy of the law is to liberally construe the statutes giving a defeated litigant an appeal to this court. There is sound reason for construing the word "within" as meaning "not beyond 30 days from the date the appeal is perfected." The case of Walker v. Fireman's Fund Ins.Co. is consistent with this holding. The particular point here involved was not raised in that case. In that case the particular point in controversy was the sufficiency of the transcript of appeal to confer jurisdiction on this court. The statute was properly construed in the Walker case. The order extending the time must be made before the appellant is in default. The word "within" when considered in the light of the context means "not beyond 30 days from the time the appeal is perfected." The order extending the time in which to file the transcript was made after the entry of the judgment, the notice of the appeal and the filing of the undertaking were served and filed and for that reason was not premature. Probably the better practice would be to wait until time has expired for making objections to the undertaking, but it would be too narrow and technical to hold the court did not acquire jurisdiction when no exceptions were taken to the surety and nothing was done to in any way alter the judgment below. The cases of Graf v. Pearcy,76 Or. 488 (149 P. 532); Cook v. City of Albina, 20 Or. 190 (25 P. 386), in as far as the same are inconsistent with this opinion, are overruled.

Plaintiff tenders another undertaking, which relieves us of the necessity of passing upon the points raised as to the insufficiency of the original undertaking given by defendant. Defendant may file the amended undertaking tendered under the provisions of section 550, subd. (4), Or. L. The motion to dismiss the appeal is denied.

BROWN, J., did not participate in this opinion.