Derby v. Newton , 138 Or. 6 ( 1931 )

A motion to dismiss the appeal herein, on the grounds that the appellants failed to prepare and file a bill of exceptions within the time allowed by statute and that they failed to justify the surety in their undetraking on appeal, was filed on December 9, 1930. Appellants were permitted to file a new undertaking, which was filed January 13, 1931, and the motion to dismiss was denied, with permission to renew the same at the time of the argument. Counsel for respondent moved to dismiss the appeal for the reason that no transcript had been filed which contained a copy of the judgment appealed from.

The transcript on appeal contains the findings of fact and conclusions of law made by the trial court, but no copy of the judgment in the cause. In so far as the record shows, there has not been any judgment rendered in the trial court from which an appeal could be taken.

Section 7-507, Oregon Code 1930, directs that 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 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; * * *"

The transcript provided by the statute is a jurisdictional matter and a copy of the judgment or decree appealed from must be contained therein in order to confer jurisdiction upon this court.

The appeal will, therefore, be dismissed.