The opinion
Rehearing denied June 21, 1927.
On Petition tor Rehearing.
( 257 Pac. 701 .)
RAND, J.
By a very able and exhaustive petition for rehearing appellant seeks to show that the dismissal of this appeal was erroneous. Appellant cites numerous decisions of this court where it has been held that the failure to file a printed abstract within the time prescribed by the rules of this court was not jurisdictional, and that after the transcript had been filed within the time prescribed by the statute, the failure to file the printed abstract would be excused upon a sufficient showing.
In all but one of the cases cited where a transcript had been filed which consisted only of a copy of the judgment appealed from, the notice of appeal and proof of service and of the undertaking, the application for permission to file the abstract was made and the abstract was filed before the expiration of the term next following the appeal. The one exception is the case of
Quartz Gold Mining Co.
v.
Patterson,
53 Or. 85 ( 96 Pac. 551 ). In that case the court said:
“An appeal is taken by serving and filing a notice and undertaking', followed by the filing of an abstract or transcript with the clerk of this court within the time required by law. If the transcript, so filed, is so defective that it presents no question for decision, the' court on final hearing will, for that reason, affirm the judgment, but it cannot dismiss the appeal.”
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The record shows that that case was dismissed at the next term of this court on motion of the respondent.
The two cases principally relied upon by petitioner are
Oberlin
v.
Oregon-W. R. & N. Co., 78
Or. 301 ( 151 Pac. 367 ), and
Fleischner v. Bank of McMinnville,
36 Or. 553 ( 54 Pac. 884 , 60 Pac. 603 , 67 Pac. 345 ). In the first case the appeal was perfected at the October term of this court, and on motion to dismiss permission to file the printed abstract was granted during the March term, which was the term next following the appeal. In the last case cited, the rules at that time required that the transcript itself should contain all of the judgment-roll, and this of course was sufficient to present all of the record which was necessary for a proper understanding of the questions to be decided. It will also be noted that that decision was rendered before the 1913 amendment of the statute and before the rules were amended to their present form, and that the rules then required more of the record to be included in the transcript than they now require.
Where both a transcript and an abstract are filed, the filing of a transcript is jurisdictional and the filing of the abstract is not jurisdictional:
McMahon v. Hull,
63 Or. 133 ( 119 Pac. 348 , 124 Pac. 474 , 206 Pac. 3 );
Sabin
v.
Owens Construction Co.,
69 Or. 269 ( 138 Pac. 844 );
Crane
v.
O. R. & N. Co.,
66 Or. 317 ( 133 Pac. 810 );
Clough
v.
Dawson,
69 Or. 52 133 Pac. 345 , 138 Pac. 233 );
St. Martin
v.
Hendershott,
82 Or. 58 ( 151 Pac. 706 , 160 Pac. 373 );
Credit Service Co.
v.
Peters,
116 Or. 138 ( 216 Pac. 742 ), and
Lasene
v.
Syvanen
(Or.), 257 Pac. 822 ; and where both are filed, the transcript must be filed within thirty days after the perfecting of the appeal,
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or within some extension of the time made before the expiration of the time when the transcript could he filed. Afer the filing of the transcript, the filing of the abstract, it not being jurisdictional, must be within the time prescribed by the rules of the court, and if the party whose duty it is to file the abstract makes default in filing the abstract within the time required, this court, upon a sufficient showing, may relieve him from his default and permit the abstract to be filed at any time thereafter, and the order extending the time for filing the abstract need not be made before the party is in default. This is so well settled by the former decisions of this court, that we deem any citation of authority unnecessary. However, by the filing of a short transcript, all of the requirements of the statute have not been complied with, and these requirements must he complied with before the expiration of the term next following the appeal because the language of the statute is mandatory and not directory. These requirements are that the appellant shall file “so much of the record as may be necessary to intelligibly present the question to he decided * * and after the compliance with the provisions hereof, the appellate court shall have jurisdiction of the cause but not otherwise.” Now, in order to comply with these provisions it is not necessary for the appellant, after filing a transcript, to file an abstract, although when he does file both, he has complied with them. If the pleadings are filed before the expiration of the term next following the appeal, the record would he sufficient to present the question of the sufficiency of the complaint, the jurisdiction of the lower court, and also the question of whether under the pleadings, one or the other of the parties would he entitled to a judgment on the pleadings and this would be sufficient for a proper
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understanding of some question which, might he necessary for decision, and would in itself comply with the requirements of the statute. The same would he true if after the filing of the transcript the hill of exceptions was filed, because in that way other questions would be presented for decision. Until something more than the short transcript is filed, there can be nothing in the record for decision, and therefore something more than a short transcript must be filed before the statute can be complied with. In this case there was nothing filed until after the expiration of the term next following the appeal, except the short transcript itself. This presented no question for decision and hence the statute was not complied with, and we were constrained to dismiss the appeal.
If the question of the effect which should be given to this statute had not been heretofore decided, there would be strong reason for holding that upon the filing in the Circuit Court of the notice of appeal and undertaking, with proof of service indorsed thereon and the filing in this court of a transcript consisting of a copy of such notice, and undertaking and of the judgment appealed from in strict compliance with the statute, that then the further direction of the statute requiring the appellant to file “so much of the record as may be necessary to intelligibly present the question to be decided,” should be regarded as directory only. This would seem to be a proper application of the principle that where a provision of statute is not of the essence of the thing required to be done, but is a mere incident and relates only to the form and manner to be followed in some judicial proceeding, the provision after jurisdiction has been acquired, is generally re
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garded as merely directory, but in the face of the prior decisions of this court such a construction cannot now be placed upon the statute.
Appellant argues that the filing of the printed abstract not being jurisdictional, and this motion having been made long after the expiration of the time provided for by the rules of this court, respondent has waived the defect. Rule 23 provides that:
“All motions must be filed within ten days after a party or his attorney obtains knowledge of an alleged failure of the adverse party or his attorney to comply with the requirements of the statute or with the rules of this court, and unless so filed all defects, except objections to the jurisdiction of the court will be taken as waived by the moving party.”
Since under the decisions of this court' the statute is mandatory, the question presented here is not merely a failure to comply with the rules, which upon a sufficient showing this court could excuse, but a failure to comply with the plain requirements of the statute which cannot be disregarded. “The mode of appeal must follow the statute, and when the statute requires that the appeal shall be taken in a specified manner, it must be followed as to time, manner and the fulfilling of all the statutory directions.” Brown on Jurisdiction (2 ed.), § 21a. Hence we are constrained to hold that the jurisdiction which this court acquired upon this appeal being perfected and a transcript being filed, was lost upon appellant’s failure to file, before the expiration of the term next following the appeal, sufficient of the record to present some question for decision, and that because of this failure a total
*220
want of jurisdiction resulted which necessitates the dismissal of this appeal.
For the motion,
Mr. Gus. Newbury.
Contra, Mr. Charles Reames.
The petition will therefore be overruled.
Rehearing Denied.
Burnett, C. J., concurs in result.