In Re Losie's Estate

In Banc. Respondent Rose E. Losie, executrix of the estate of James E. Losie, deceased, filed a motion in the above entitled cause and court, asking that the appeal be dismissed on the ground that appellants failed to file their transcript in the supreme court within the time provided by statute, which is 30 days from the time of perfecting the appeal.

The order approving the final account of the executrix was filed in the circuit court for the state of Oregon on the 28th day of August, 1936. On October 27, 1936, Howard Losie and Mildred Losie, creditors of the above-named estate, filed a notice of appeal to the supreme court. On October 29, 1936, appellants filed an undertaking on appeal with A.K. Royal, as surety, to which exceptions were filed. On November 5, 1936, appellants served and filed an undertaking on appeal with the National Surety Corporation, as surety thereon. This was within ten days from the time of serving and filing the notice of appeal, as provided by section 7-503, Oregon Code 1930. Respondent had five days, or up to and including November 10, after the filing of such undertaking, to except to the sureties thereon. No exceptions were filed. Therefore, by virtue of the said section, from the expiration of the time allowed to except to the sureties in the undertaking, the appeal was deemed perfected. See § 7-109, Oregon Code 1930; Boothe v.Scriber, 48 Or. 561 (87 P. 887, 90 P. 1002); Vincent v. FirstNat. Bank, 76 Or. 579 (143 P. 1100, 149 P. 938); Re Applicationof Riggs, 105 Or. 531 (207 P. 175, 210 P. 217).

The first day for filing the transcript of record was November 11, 1936. Thirty days thereafter would be December 11, 1936. § 7-507, Oregon Code 1930. The transcript of record in the cause was filed in this court on December 8, 1936, which was well within the time allowed by statute. The undertaking was approved by the judge November 6, 1936. It is stated in the brief on the motion to dismiss that respondent on November 6 waived his objections to said undertaking. There was no notice of such waiver served upon appellants, and we think it did not curtail or change the time allowed to except to the sureties or hasten the date when the appeal was deemed perfect, or change the date from which the 30-day period for filing the transcript would begin to run.

The motion to dismiss must be denied. It is so ordered.