Vincent v. First Nat. Bank

Opinion

1. Tbe first ground of tbe motion is based upon the proposition that on tbe 1st day of July, when tbe order was made enlarging tbe time to file tbe transcript, tbe undertaking bad not been filed and tbe appeal bad not been perfected. The statute reads:

“Tbe trial court or tbe judge thereof, or the Supremé Court or a justice thereof, may, upon such *581terms as may be just, by order enlarge tbe time for filing the same [abstract]; but such- order shall be made within the time allowed to file transcript, and shall not extend it beyond the term of the appellate court next following the appeal”: Laws 1913, p. 619.

The contention made that this order can only be made after the appeal has been perfected and before the time «to file the transcript has expired we think not sound. This construction is far too narrow. The context shows that it was meant that the order should be made before the time had expired to file the transcript, and not to restrict it to the time after the appeal had been perfected. We think .this order was made within the proper time.

2. The second contention that the undertaking was not filed within the proper time is answered by decisions of this court in a number of cases, the last of which was Pringle Falls Power Co. v. Patterson, 65 Or. 476 (128 Pac. 820). The time within which an act must be done is computed by excluding the first day and including the last; and if we exclude the 23d, the undertaking was served and filed within. 10 days.

3. The third contention that the abstract was not filed within the time is answered by the same computation.

4. The last contention that no transcript of the original proceedings has been filed is without merit. Laws of 1913, Chapter 335, provide:

“When an appeal is perfected the original pleadings and original bill of exceptions shall be sent by the clerk, or other proper officer of the trial court, to the clerk of the Supreme Court or appellate court.”

The original bill of exceptions was filed with the transcript, and this is all that can possibly be of any benefit to any of the parties. To bring up all the mo*582tions, summons and other papers that are filed in the court below would simply entail a burden upon the court below, as well as upon the clerk of this court, and would serve no useful purpose. The pléadings are required to be copied in the abstract, and are so done in this case; and, if the clerk of the court below has not seen fit to send these original papers up, we cannot see that anybody is injured. If counsel for respondent desires them, he can have them sent here.

*582The motion to dismiss the appeal is denied.

Motion Denied.

Argued June 22, reversed June 29, 1915.

On the Merits.

(149 Pac. 938.)

delivered the opinion of the court.

5. The case made on the demurrer to the complaint is controlled by Thompson v. Marshall, 21 Or. 171 (27 Pac. 957), where it is established in an exhaustive opinion by Mr. Chief Justice Strahan that, although absolute on its face, a conveyance which is, in fact, intended to be a mortgage or security for the payment of indebtedness, does not operate to convey title, but is, in very truth, only a mortgage which it is necessary to foreclose in the manner provided by our statute before the grantor or mortgagor can be divested of his estate. In opposition to the demurrer the plaintiffs set much store by the allegation that it was understood and agreed the defendant should have power to convey the premises, and account to the plaintiffs for the proceeds. This allegation does not suffice to differentiate *584this case from Thompson v. Marshall, 21 Or. 171 (27 Pac. 957). The same element appeared in the transactions there in question. Indeed, it is common practice to include in any mortgage of realty a power to sell the premises.

6. We have, then, in the instant case, according to the complaint, a situation where a mortgagee has attempted to alienate the estate of the mortgagor, but, having no title; the former effected nothing by such a transaction. Tried by the statement of the plaintiffs in their primary pleading, their title has not been in any wise disturbed. For all that appears on the face of the complaint, they might even yet bring suit to redeem the property or the defendant might sue to foreclose. Where the mortgage is in form an absolute deed, conveyance to an innocent purchaser would militate against the title of the mortgagor; but that element does not appear in this' case. In brief, the plaintiffs rely for recovery upon an act of the defendant which by the showing made in the complaint did not affect their interests in the least. That pleading does not state a cause of action. Hence it is not necessary to consider, the other errors assigned.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

Reversed and Remanded.