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Moon v. Richelderfer

Moon v. Richelderfer, 108 P. 178 (Or. 1910)
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Court
Oregon Supreme Court · State Highest Courts
Decided
April 26, 1910
Judges
Eakin
Citations
108 P. 17856 Or. 2461910 Ore. LEXIS 166
Disposition
Dismissed.
Headnotes
Appeal and Error — Failure to File Transcript — Right to Abandon Appeal — Successive Appeals. After an appeal lias been perfected, the right of appeal is lost, if appellant fails to file the transcript within time, since the filing of a transcript on time is expressly made jurisdictional by Section 553, B. & C. Comp., and hence an appeal cannot be abandoned after failure to file a transcript, and a new appeal taken.
Summary
From Sherman: Robert R. Butler, Judge. This is an action by E. B. Moon and Blake Shaw, against H. Richelderfer, wherein a judgment was rendered in favor of plaintiffs, and defendant appeals. On motion to dismiss appeal.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Eakin

Text extracted by OCR from a scanned original; check the original for exact wording.

Mr. Justice Eakin

delivered the opinion of the court.

On July 13, 1909, plaintiffs recovered a judgment against defendant for $200 and costs, and on October 22, 1909, defendant served and filed with the clerk of the circuit court a notice and undertaking on .appeal, with proof of service duly indorsed thereon. No transcript was filed in the Supreme Court within the time allowed by law therefor. Thereafter defendant abandoned the appeal. On January 8, 1910, defendant served a second notice and undertaking on .appeal, which was filed in the circuit court on January 15, 1910. The transcript was filed in this court March 9, 1910. On March 11, 1910, plaintiffs filed a motion to dismiss the appeal for the reasons that it has not been taken in the manner or within the time provided by law, and that the Supreme Court has no jurisdiction to entertain the appeal.

When an appeal is perfected, it cannot be abandoned thereafter and a second appeal taken. The right of appeal is lost if the transcript is not filed within the time allowed by law or an extension thereof. This is jurisdictional. Section 553, B. & C. Comp. Nestucca Wagon Road Co. v. Landingham, 24 Or. 439 ( 33 Pac. 983 ); Davidson v. Columbia Timber Co., 49 Or. 577 ( 91 Pac. 441 ); Harrington v. Snyder, 53 Or. 573 ( 101 Pac. 392 .)

The appeal is dismissed. Dismissed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1914: 11931: 11939: 119142026peak 1914 · 1

Relies on it most ⓘ

  1. State v. Rosser91 P.2d 295 (Or. 1939)
  2. McKinney v. Nayberger6 P.2d 228 (Or. 1931)
  3. Columbia City Land Co. v. Buhl134 P. 1035 (Or. 1914)

Most recent

  1. State v. Rosser91 P.2d 295 (Or. 1939)
  2. McKinney v. Nayberger6 P.2d 228 (Or. 1931)
  3. Columbia City Land Co. v. Buhl134 P. 1035 (Or. 1914)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Nestucca Wagon Rd. Co. v. Landingham, 33 P. 983 (Or. 1893) 14
Davidson v. Columbia Timber Co., 91 P. 441 (Or. 1907) 8
Harrington v. Snyder, 101 P. 392 (Or. 1909) 4

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