Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-20

matter to be brought to the courts
attention by the appellant in the an
swering paper mentioned in the rule.
The party filing a motion is not re-
quired to negative in advance the
possibility that for more than 10 days
he has had notice OF the defects of
which he complains. His waiver is
a matter Of defense to be urged by
his adversary.
BY the affidavit of one of appel
lants counsel. it is represented TO
the court that he was misled into
what he claims would amount to ex-
cusable neglect on his part by the
language Of this court in Shafer "
Beecher "a Ore. 273, by the construc-
tion placed upon rule 81 by the clerk
OF this court in a communication re-
spending to appellants request TO
have time extended in which to file
appellants brief and by the letters of
respondents counsel suggesting that
If appellants attorneys would be
present with its brief on the first
day of the Pendleton term, the first
Monday in May, they would argue the
case on appeal, the respondent to
take further time to file his brief.
Whether the others of appellants at
tOrneys of record were misled in any
manner does not appear. The affiant
states that they, associate counseD.
took no action on the motion of re-
spondent but assumed that the mat
ter would be attended to by me-" Ap-
pellant's counsel did not accept the
overtures Of respondents attorneys
to present with appellants brief at
the opening of the Pendleton term
and then argue the case on appeal. !
In lieu thereof the brief was not |
filed until the second day of the term
and counsel for appellant did not ap-
pear 1t is not clear how appellant |
can take advantage of an offer of the |
adverse party which was not accept !
ed or complied with. The letter of |
the clerk in response to appellants |
request to have the time for filing its |
brief extended, is not set out in the |
allldayit hence we cannot determine |
whether atlantis construction of the |
letter is sound or not even if the .
clerk had authority to speak for the |
court; but it does appear that the af-
fiant afterwards requested the clerk
not to present the application for ex-
tension of time. In Shafer V. Beech
er supra, where it was sought to ex-
cuse the failure to file appellants
brief by a showing of pressure of
business on his attorney and delay of
the printer in getting out the brief,
/, To h,1 hat r
gence, under the circumstances, re-
quired the appellant to apply to the
court for an extension of time. With
this case and others like it cited
above before him, the affiant not to
speak of his associates. without /.
ayailing himself of the offer of re-
spondent to argue the case at the
opening of the Pendleton term, with
lrew his application for an extension
1f time and went to San Francisco in
attendance on the L. S. courts. His 4
'ase is substantially like that set out
n behalf Of appellant in Shafer V.
3eecher, in which the court affirmed
he judgment of the circuit court on
notion because appellants brief was
lot filed in time.
The essence of appellants conten-
ion, however, Is that Shafer. V. L
3eecher places construction on {
'ule 81 relating to the Pendleton
erm to the effect that the 80 days
within which the appellant must file
is brief means that period of time
after the transcript or abstract of
'ecord is filed and not in the Ian
guage of the rule within 30 days af-
er the appeal is perfected" True
enough, the transcript was filed in
hat case January goth, and the court I
'aid the brief was due on February {
10Th, although, as the files of this {
'ourt show, the appeal was perfected
January 4th. The opinion might as
we'll have stated that the brief was
,verdue February goth. 1t was in
act due as early as February 3rd,
hat being within 80 days after the
perfection of the appeal on January
Ith. Because the court said it was
lue February Goth or as elsewhere in
he statement set down as before
February GOTH the converse does
lot follow that 1t was not due before
hen. The perfection of an appeal is
,iyen statutory definition by our
ode, l.. o, l.. Sec. $50, sub. under
he terms of which it dates from five
lays after the service of the under
aking on appeal if no objections to
he sureties appear. We cannot
lightly give these words different
meaning in the face of that statute.
SO far as Shafer v. Beecher may be
construed to give another significa-
ion to the perfection of an appeal. II
mould at least be distinguished 1t
also contended by APPELLANT that in
Ismuch as this court could not have
Icquired jurisdiction over the cause
Until the transcript was filed. L. O.
d Sec. 554, 1t could not have made
n enectual order after the appeal.
vas perfected, so that an applica-
ION to this court for that purpose
would have been useless. The con-
fusion rroed is that the omission to |
lie the brief does not affect the an
ellant unless the delinquency oc-
urred after this court acquired iur- :
Sdiction by the filing OF the tran
cript and hence that the court could
ot dismiss the appeal The answer
0 that reasoning is that the court
Id not undertake to make the order I
lsmissing the appeal until after the
transcript was filed and it then had
he same authority to make the or
er for that shortcoming of appel
mt as for any other occurring be-
ore filing the transcript. as for in
tance, q defective notice of appeal