Motion to dismiss appeal filed April 9;

allowed April 30, 1918,

#### OGDEN *v.*HOFFMAN.

(172 Pac. 503.)

Appeal and Error — Exhaustion of Eights — Eight of Appeal.

1. Where plaintiffs’ rights under their first notice of appeal had expired, the appeal having been perfected by service of notice and filing the required undertaking, plaintiffs’ rights were exhausted and they could not take another appeal.

Appeal and Error — Notice—Service on Attorney.

2. Plaintiffs’ service of notice of appeal to the Supreme Court upon one of defendant’s attorneys was sufficient.

From Clackamas: James U. Campbell, Judge.

This is a motion to dismiss an appeal. The facts are as follows: The plaintiffs, deeming themselves aggrieved by a decree of the County Court sitting in probate, appealed to the Circuit Court where, upon motion of the defendant, their appeal was dismissed, said order being made December 27, 1917. On January 31, 1918, plaintiffs served upon John N. Sievers, one of defendant’s attorneys, a notice of appeal to this court, which notice was filed with the clerk with due proof of service on February 1,1918, and also filed on the same date their undertaking on appeal. No exception was taken to the sufficiency of the sureties so that on February 7,1918, the.plaintiff s’ appeal became perfected, and it was their duty if they desired to be heard here, to file their transcript with the clerk of this court within thirty days from that date: Section 554, L. O. L. Failing to do this or to obtain an extension of time, they must be deemed to have abandoned the appeal: Section 554, subd. 3, L. O. L.

The plaintiffs, on February 13,1918, served and filed a new notice of appeal and undertaking. The appeal being from the same decree, both the attorneys for *504defendant accepted service. In the second notice of appeal appears the following statement:

“This notice of appeal is now given for the reason that the notice of appeal heretofore given was given before judgment for costs was entered and was served upon John N. Sievers only. This notice of appeal will be relied on by the appellants herein.”

On March 12,1918, the transcript on appeal was filed in this court.

Appeal Dismissed.

*Mr. Charles T. Sievers*and *Mr. John N. Sievers,*for the motion to dismiss.

*Mr. C. D. Purcell*and *Mr. Henry S. Westbrook, contra.*

McBRIDE, O. J.

1, 2. Plaintiffs ’ rights under the first notice of appeal expired March 10, 1918, and that appeal having’ been perfected by service of notice and filing the required undertaking, the plaintiffs’ rights were exhausted and they could not take another appeal: *Schmeer*v. *Schmeer,*16 Or. 243 (17 Pac. 864); *Hill*v. *Lewis,*87 Or. 239 (170 Pac. 316), and many other cases. The service of the first notice upon one of the attorneys for defendant was sufficient.

The judgment for costs and disbursements was a separate proceeding arising upon an objection to the cost bill. It was heard separately and a separate judgment entered sustaining all plaintiffs’ objections thereto, so that plaintiffs had no right to appeal in that behalf and indeed have not attempted to do so.

The appeal will be dismissed with judgment against plaintiffs and their sureties for the costs of this proceeding. Appeal Dismissed.