Proctor v. Jeffery

Proctor v. Jeffery, 144 P. 1192 (Or. 1914)

Court: Oregon Supreme Court · State Highest Courts
Decided: December 29, 1914
Judges: Moore
Citations: 144 P. 119276 Or. 1511914 Ore. LEXIS 394
Disposition: Motion Denied.

Cited by 1

Headnotes

Appeal and. Error — Proceedings—Lack of Jurisdiction — Dismissal. 1. Where lack of jurisdiction of an appeal is disclosed by the appellant’s failure to give a proper notice of the appeal within the time limited to file a proper undertaking or to send up a transcript, the appeal must be dismissed. Appeal and Error — Proceedings—Assignment of Error — Failure to Include — Effect. 2. Where an abstract on appeal failed to contain assignment of errors, such assignment not being essential to transfer of the cause, its omission was not ground for dismissal, and appellant would be permitted to include it by amendment. Appeal and Error — Scope of Review — Pleadings. 3. Where an appeal is taken by defendants, they may contest the sufficiency of the complaint for want of faets without filing a bill of exceptions.

Summary

From Clatsop: James A. Eakin, Judge. This is an action by Mrs. J. H. Proctor against Robert R. Jeffery, as executor, and Nellie Mason, as executrix of the will of R. L. Jeffery, deceased. Judgment for plaintiff, and defendants appeal. On motion to dismiss appeal. In Bane.

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

Opinion of the Court — Moore

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Mr. Justice Moore

delivered the opinion of the court.

This is a motion to dismiss an appeal on the grounds that the abstract does not contain any assignments of error, and that the bill of exceptions is insufficient to authorize an investigation of any questions to be reexamined. The appellants’ counsel, denying that the bill of exceptions is inadquate, moves for leave to file an amended abstract setting forth assignments of error.

1, 2. When by the failure of a party to give within the limited time a proper notice of appeal, to file an undertaking therefor, or to send up a transcript thereon, a lack of jurisdiction is disclosed, the appeal must necessarily be dismissed. An assignment of errors in an abstract though convenient to a speedy examination of the questions undertaken to be reviewed, is not now made by statute essential to a transfer of a cause to the Supreme Court. It has been the practice, when an assignment of errors was inadvertently omitted, to permit, on proper showing, a typewritten statement of the errors relied upon to be inserted in the abstract after it was filed.

3. In the case at bar, the appellants being the defendants can, upon the filing of a mere transcript, challenge the sufficiency of the complaint to state facts adequate to constitute a cause of action, without filing a bill of exceptions.

*153 The motion to dismiss the appeal should be denied and leave granted to file an amended abstract which has been tendered, and it is so ordered.

Motion Denied.

Dismissed as per stipulation May 11,1915.

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Cited by 1 case

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State Highest Courts1

Relies on it most ⓘ

State v. Rider145 P. 1056 (Or. 1915)

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State v. Rider145 P. 1056 (Or. 1915)

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