The opinion
Rehearing allowed October 8, 1929.
On Petition eor Rehearing
( 281 Pac. 123 )
McBRIDE, J.
This is a petition for rehearing wherein the petitioner questions the accuracy of our decision, reported in 267 P. 281 , dismissing plaintiff’s appeal for the reason that his original claim presented to this administratrix was not brought up to the circuit court with the transcript on appeal from the county court. The transcript from the. circuit court
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contained a mass of detached papers rendering it difficult to ascertain what was and was not brought up. It now appears that the original claim was not brought up to the circuit court, and that defendant moved the court to dismiss the appeal for that reason. The circuit court denied the motion and made a rule on the clerk of the circuit court, who is also clerk of the county, to send up the original claim, which was done, although after the time for filing the transcript had expired.
Here is what we find, from the record, was contained in the transcript which was originally and timely sent up as a transcript and filed in the circuit court. It is a synopsis of what was done in the county court and appearing on the transcript filed in the circuit court, prepared by counsel for appellant, which synopsis we find to be substantially correct. It is as follows:
“1. In the matter of the estate of Ben P. Lewis, deceased.
“2.
Order disallowing a portion of the claim of Mason, Ehrman
&
Co.
“3. The matter came on before the judge of the county court for decision.
“4.
Mason, Ehrman
&
Co., having theretofore filed its claim for the sum of $3,712.44.
“5.
On which claim Mason, Ehrman & Co., voluntarily allowed a credit of $81.42, leaving a balance claimed by it against the above mentioned estate of $3,631.02.
“6. Said claim having been presented to Hattie V. Lewis, administratrix of said estate, and said administratrix having disallowed $1,577.84 of said claim.
“7.
Mason, Ehrman & Co., having filed in this court (county court) its petition praying that its said claim be allowed in full.
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“8. Said cause came to trial in said court on January 12,1926, before the judge of said court.
“9. Mason, Ehrman
&
Co., having produced evidence in support of its claim.
“10. Hattie V. Lewis, administratrix of said estate, having appeared and with her attorney, introduced evidence in support of her disallowance of said claim.
“11. Counsel for the respective parties having filed with the court arguments in writing in support of their respective petitions.
“12. The court having considered the testimony offered and the briefs of counsel and being advised in the premises.
“13. Ordered, that the disallowance of said claim of Mason, Ehrman & Co., in the sum of $1,577.84, be and here is approved, and said claim in that sum is disallowed by the court.
“14. That it is further ordered that said claim of Mason, Ehrman & Co. be allowed in the balance thereof, in the sum of $2,053.18.
“15. Claim restated as presented..............$3,712.44
Voluntary credit..............$ 81.42
Disallowed ........................ 1,577.84
Allowed.............................. 2,053.18
$3,712.44.”
Section 554, O. L., is as follows:
“Transcript, Filing of — When Appeal Abandoned. Upon the appeal being perfected the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the law or the rules of the appellate court may require of so much of the record as may be necessary to intelligibly present the question to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; if the cause is one on appeal to the supreme court, which it is provided by law or rules of the court
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shall be submitted at Pendleton, the transcript and abstract shall be filed within the time and in the manner herein provided with the deputy clerk of the court at Pendleton; otherwise with the clerk of the court at Salem; and after compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise. ’ ’
"While the omission to bring up the original claim was a technical defect, we are now of the opinion that it was not of such a character as to deprive the court of jurisdiction, and that the record actually brought up was sufficient, in the language of the statute, “to intelligibly present the question to be decided by the appellate tribunal.”
The writer of the opinion is frée to state that he followed the opinion of Justice Burnett in
Seaweard v. Malheur Drainage District,
89 Or. 40 ( 173 P. 462 ). In that case, however, which was in equity, nothing appeared but the bare order dismissing the appeal taken to the circuit court. There was an entire want of anything from which the court could derive any intelligible information as to the issues to be tried, or that were tried in the circuit court. While the opinion of Justice Burnett was absolutely correct as applied to the case he was considering, the writer of this opinion is convinced that he erred in applying it to the case at bar. It is therefore ordered that the opinion be set aside, that the motion to dismiss be denied, and that the case be now considered on its merits.
Motion to Dismiss Appeal Denied on Petition eor Rehearing
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For appellant there was a brief over the names of
Mr. George W. Caldwell
and
Mr. D. E. Fletcher
with an oral argument by
Mr. Caldwell.
For respondent there was a brief over the names of
Mr. Henry E. Perkins
and
Mr. B. C. Groesheck
with an oral argument by
Mr. Perkins.