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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Sept. 20, 1911)
fACB TWO DAILY CAPITAL JOCBXAL, bALEM, OREGON, VHtSPAV, SEITEMBER 20, 10". the capital journal 2. HOFEH, Editor and Prorrlator. R. M. HOFER, Manager tdpnlent II'. t paper Devited to American PrincIjJea nj th Prtyrwi and Det 'lotJnent of All Orwn Publfeha.' Evtry Evening Except Sunday, f&un. Or SUBSCRIPTION RATESl (Invariably In Advance) J-. by Carrier, per year 16.00 Per month , 50c dy, by Mail, per year 4.10 Per r-r ftfeklr. by Mail, per year 1.00 Six mnathi We - ,i, , rUll. LEASED W1BB TEUiGRAPH REPOKT REFUSES TO REINSTATE THE APPEAL notice that the brief had not been filed, moved to dismiss the appeal. Although this motion was served on counsel for appellant at the time of filing no opposition to It wasmade in any way for more than 10 days there after and on July ;", 1911, there still helnt? no opposing paper presented to the court, an order was entered dis missing the appeal. Rule 14, SO Ore. ")T9; Commercial National Bank v. Temple M! 1'ac. 12'.'; State v. Horn 2!) Ore. 1.12; Br. Pac. 1066; Schafer v. - needier 04 Ore. 27;'.; 101 I'ac. 899; Smith v. Smith 10.1 Pac. 701;. This Cole t. Willow Ither Lund & Irr!i?n. action r court Is Justified not lion Co., Malheur County. only h? ,lle precedents above cited Leonard Co,, respondent, , Wll- MT, WrLZ low itlver 4c Irrigation company, a thus: "All motions and nnnpra mm. corporation, appellant. Appeal from 1'lomental or opposed thereto must he the circuit court for Malheur county. Hon. Dalton Dlggs, Judge. Motion of appellant to re-Instate appeal. Rich ards & Haga and Wheeler & Hurley on brief for appellant. John L. Rand and M. D. Clifford on brief for re spondent. Motion denied. Per Cur lam. Per Curiam: In this case the no tice of appeal with proof of service thereof endorsed thereon, together with the undertaking on appeal was filed In the circuit court on LYIirimrv 8, 1911. No exceptions to the sulll dency of the sureties having been niado within live (lavs thereafter, as provided by L. O. I.. Sec. CIO sub. 2, the appeal was perfected from and after February 13. 1911. "From the expiration of the time allowed to ex cept to tho sureties In the undertak ing or from tho Justification thereof, If excepted to, the appeal shall be deemed perfected." I O. L. Sec. 550 sul). 4. Rule 37 governing tho practice in this court, 50 Ore. 5S9, requires that, "In cases for hearing at Pendleton, the appellant, except In equity cases to ho tried anew, must servo n brief containing a concise statement of the errors relied upon, within 30 davs af ter the appeal la perfected." t'ti'ler this rule tho brief of tho appellant was due to bo tiled on or before March 15, 11111, but It was not tiled until May 2nd of that year. On the same day the respondent, claiming by an unverified statement In his motion flint linUl dlllf time hn hml lin.I nr. filed with the clerk and served on i opposite party or his counsel, who, within 10 days from such service, Is required to file and serve nn nnswer lng paper on the moving party or his counsel, or he shall be deemed to have confessed the motion. The moving party, after being served with an answering paper, may, with in five days, serve and fllo a reply. All motions mst be filed within 10 days after a party or his counsel ob tain knowledge of nn alleged failure of the adverse party or his counsel to comply with the requirements of the statute or with the rules nf n.la court. Any neglect to file a motion within such time will be deemed a waiver of nil defects, except matters of jurisdiction." For failure of the appellant to file and serve an answering paper against the motion of resMndent to dismiss the appeal within 10 days af ter service thereof the appellant is deemed by the terms of the rule to have confessed the motion. It con tends now, among other things, that respondent must have known from March 1.1th, the date when appel-1 hint's brief was due, that no such 1 brief had been filed because none hud i been served on him. Hut this con-j elusion does not necessarily follow I because there Is no rule forhldillnir I the filing of papers without service 1 thereof, nnd this Is of frequent oc currence. Moreover, the fact. If It be a fact, that the respondent had knowledge of the failure of the ap pellant to file Its brief for more than 10 davs before I nir the motion to dismiss would more properly be a matter to be brought to the court's attentlon 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 lant's 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 v. needier 54 Ore. 273, by the construc tion placed upon rule 37 by the clerk of this court In a communication re sponding to appellant's request to have time extended in which to file appellant's brief and by the letters of respondent's counsel suggesting that If appellant's attorneys would be present with its brief on the first day of the Pendleton term, the first jionuay in .May, they would argue the case on appeal, the respondent to take further time to file his brief. Whether the others of appellant's at torneys of record were misled In any manner does not appear. The affiant states that they, (associate counsel), "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 respondent's attorneys to present with appellant's 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 dav of the term and counsel for appellant did not appear- It Is not clear how appellant can take advantage of an offer of the adverse party which was not accept ed or compiled with. The letter of the clerk In response to appellant's request to have the time for filing Its brief extended. Is not set out In the affidavit hence we cannot determine whether affiant's construction of tha letter is sound or not, even if the clerk had authority to sneak 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 appellant's brief by a showing of pressure of business on his attorney and delay of the printer In getting out the brief, this court held that reasonable dill- under the Klood'ji Sarsaparilla Acts directly and peculiarly on the blood; purifies, enriches and revitalizes it, and in this wav builds tiD the whole svs-! tem. Take it. Get it today, j in usual liqui'l form or in chocolate coated tablets called Sarsatabs. The Chicago Store Is Salem's Leading Store ... . tif 1 I.... . r j ii.. 4A .-, Utipinflcp Ma col Wat hinrr U.. because we 00 uie gieaieM vuiuiue ui uuoiiigoo. o, wining ulu merit, Quality greatest staff of help and distribute goods all over Oregon! the most goods, employ P and style could have built this store up so fast. LEISHMAN PUT UP THE PRICE FOR THE PLACE mi csited rarss LEASED wire.) New York, Sept. 19. Some aston ishing diplomatic and political his tory was revealed here today in a boom for Dr. David Jayne Hill, for mer American ambassador to Ger many, for the Republican nomination for governor of New York next fall. It is alleged that the gubernatorial nomination was promised Hill as a sop for his removal from the Berlin post. Owing to the strained condi tion of Republican national finances, the story goes, It was necessary to give an Important job to some one who could help finance the 1912 cam paign. Hill's services at Berlin had been eminently satisfactory but he reluc tantly accepted the axe with the statement, "I am a good Republican." John G. A. I.eishman, steel mag nate and former president of the Carnegie Steel company, was then chosen, it is said, in order to help 1 the Republican finances. The lead ers of the party, it is said, promised Hill the New York governorship fo make up for the Joss of his diplo matic position. 0 IT .W 'A j f i A! h I . 4, I w I L i i I We are now of fering the great est Cloak and Suit bargains in Salem, See orr prices, New Fall CLOAKS SUITS XOAY OX SALE For women, misses ami children. Every garment up to the hour in styles, workmanship and material. Come and see if you want to appreciate th"? val ves we are offer ing and the money we can save you in your fall wearing apparel. We are always in the front rank when it comes to giving the best values for the least money. Ladies' $15, $1S, $20 and $25 suits, now on sale for $9.90, $10.50, $12.50 and up. eence. under the circumstances, re quired the appellant to apply to the I Attacks School Prindnil. court for an rxtension of time. With A tt,nv cAi t.u,i 't 1.. pa, CnaS- B A1eni of sylvan 0a above before him, the affiant, not to lg thus told by him: "For more than 1 ... ., ,. nf1(1"les- 'itoiit j three years," he writes, "I suffered .iwuhuk .n.nneu ui me oner 01 re-1 indescribable torture from rheuma spondent to argue the case at the tlsm, liver and stomach trouble and ooen nir of the Pendleton term with-' iOAnnnj 1.1.1 .1. ..... - -. ...... 1 uinawu muueys. ah remedies drew his application for an extension 1 failed till I used Electric Bitters but tf tllllQ tin1 TWil-l in Con fwn riidnr.n In ... ... ... of time and went to San Francisco in attendance on the I". S. courts Ills case Is substantially like that set out In behalf of appellant In Shafer v. lleecher, In which the court affirmed the judgment of tile circuit court on motion because appellant's brief was not filed In time. The essence of appellant's conten tion, however, Is that Shafer. v. lleecher places a construction on rule ;!7 relating to the Pendleton term to the effect that the 30 days within which the appellant must flic lis brief means that period of time after the transcript or abstract of record is filed and not in the lan guage of tho rule "within 30 days af- 1 ier me appeal is penecieu. 1 rue enough, the transcript was filed In that case January 20th, and the court said the brief was due on Fpbrnnrv 2oth, although, as the files of this i dealers court show, the anneal was tierfecterl l January 4th. The opinion might as well have stated that the brief was four bottles of this wnnrtfirnl romorW cured me completely." Such results are common. Thousands bless them for curing stomach trouble, female complaints, kidney disorders, bilious ness and for new health and vigor. Try Them. Only 60c at J. C. Perry's. o Klamath Falls barbers are soro be cause a Portugese has opened a shop and reduced the price of a shave from 25 cents to 15 cents. o Chamberlain's Colic, Cholera and Diarrhoea remedy is today the best known medicine in use for the re lief and cure of bowel complaints. It cures gripping, diarrhoea, dysentery, and should be taken at the first un natural loosentss of tht bowels. It Is equally valuable for children and adults. It always cures. Sold h nil If V0U want to buv silks and dress p-nnrls. the lowest Drices in Salem, mine hem. We can prove it. SILKS and DRESS GOODS Now on sale, The rre.-itest shnwinn- in Salem, Evervthina that is new and fash ionable is here, and our low prices will surprise vou, Dress Goods - - yard loc. S5c, 4iJc, 65c up i Come here if you want stylish Millinery, Bargains in trimmed hats, ostrich plumes etc, New Fall Millinery Now opened up and ready for selling the greatest showing we ever made in fashionable headware and at prices so low that you will be surprised, For exam ple, $7,50, $8,50 and $10,00 stylish hats now on sale for $2.95, $3.50 and $4.50 Greater CHICAGO STORE 'Oregon i j "The Store That Saves You Money" : iminl,MnaiiMiiia imiii I -iu iit.iin tun JHHJJT THE ONLY WAY. Statement of Facts Hacked Ntrouir Oiinraiitee. so know of other neonle who hav f.. e i iaisrn tnis remeay tor k uney uouoi Ilt- n .Many Salem C.ltVinna ir..n t: , . J .... J i. . ...v..a c wun tne oest 01 results. covered It, For sae bv all Qealera. Price 5 Just what to do when the kidneys cents. Foster-MUburn Co., Buffalo! ... ":u.cu, i a question tnat con cerns both young and old. Weak n ALL owners of E. M. or FLANDERS Cars, ail own ers of ANY Car, all dealers in ANY AUTOMOBILE, all admirers of a beautiful dis play, and the public in general are invited to our opening of the E. M. F. MOTOR SALES CO. 246 South Commercial Street . Just South of Marion Hotel Wednesday Afternoon and Evening and to see the finest display of NEW 1912 MODEL Of AUTOMOBILES ever exhibited in Salem. The E. M. f. "30" and FLAINDER "20" which we handle need no introduction, but we as distributors desire your acquaintance. We have cast our lot with you and we are here to stay. Come and see our line of the BEST AUTOMOBILES on the American market. We will be ready and our doors open to the public Wednesday Afternoon and Evening WE WANT TO GET ACQUAINTED And we want to see you all whether you eer expect to buy an Automobile or not. ie L M. F. Motor Sales Co. C. L. ROSE, Manacer. . overdue February 2oth. It was In fact due as early as February 3rd, ! that being within 30 days after the j perfection of the appeal on January 4th. Ilecause the court said It was : due February 20th or as elsewhere in j the statement set down as "before j February 20th." the converse does t not follow that It was not due before ' then. The perfection of an appeal Is Klven a statutory definition by our ! code. 1 4. O. I.. Sec. r,.r0, sub. 4 under i the terms of which It dates from five i days after the service of the under-; tuklnR on appeal if no objections to ; the sureties appear. We cannot : rightly give thetie words a different meaning In the face of that statute, j So far as Shafer v. lleecher may be I construed to give another significa tion to the perfection of an appeal.it: should at least be distinguished. It Is also contended by appllnnt that In-; asmuch as this court could not have i acquired Jurisdiction over the cause j until the transcript was filed. L. O. ! Ij. Sec. r,!i4, It could not have made ! an effectual order after the appeal.! was perfected, so that an appllca-1 tlon to this court for that purpose would have been useless. The con-1 elusion i-red Is that the omission to; fllo the brief does not affect the ap-I pellant unless the delinquency oc-!. c-urred nfter this court acquired' Jur- j itmuuon oy me flung or the tran script and hence that the court could not dismiss the appeal. The answer to that reasoning Is that the court did not undertake tn mnk tho rrrf..- dismlaslng the appeal until after the transcript wns tiled and It then had the same authority to make the or der for that shortcoming of appel lant as for any other occurring be fore filing the transcript, as for In stance, a defective notice of appeal or undertaking or want of service of notice nnd the like. Besides. Shafer v. lleecher pointedly says that the proper course Is for the appellant to apply here for further time to file Its brief. We do not think the arrav of coun sel for appellant should be allowed to make a scapegoat of one of their number who happened to be other wise engaged to the detriment of the case In hand so as to avoid the oper ation of the plain terms of rule a: It has bven enforced In other cases! as well as In Shafer v. lleecher and should not be overruled In the easel at bar. ' j The motion of the appellant to re-' ""uiie uie appeal Is denied. ! o "Can b depended upon" la an expression we all ike to hear, and i when It Is used in connection with 1 Chamberlain's Colic. Cholera and Diarrhoea llemil l mum ... i. uiMer inns to cure diarrhoea Notice to Property Owners in North and South Salem Sewer Districts . It is now time for you to consider making your connec tions with the new sewer sys tems. The Salem Sewer Pipe Co. has tieen of direct service to you because it has forced down the price of sewer pipe at least 2.", ptr cent in the last two years. We feel that in return you owe it to us to Investigate our pipe. We wish you to come and see a factory making sewer pipe in your own town em ploying your own town's peo ple. We wish to show you the superiority of our product over all other kinds of sewer pipe the strongest pipe made. Come to the factory, corner of Liberty and Trade streets. Salem Sewer Pipe Co. AVe guarantee complete relief to all sufferers frnm f.njtinntin h, ... w...AiUUn, ill tvcuiv every case where we fall xvo u-m ; Kidneys neglected in rhllrlhnn lsoj ; supply the medicine free. lto life-long suffering. People of ad- ! Kexall Orderlies are a gentle, ef- J'nced years, with less vitality, suf i feetive. dependable and safe bowel j'er doubly. In youth or age, languor, ' regulator, strengthener and tonic. Dnache. urinary irregularity, diz They re-establish nature's functions llless and nervousness make life a ! in a quiet, easy way. They do not burden- ! cause any inconvenience, griping or ' T.nei'e Is one remedy that acts di- nausea. They are so uleasant to recty onthe kidneys. Doan's Kid New York, sole agents It the Unite!' j states. Remember the name Doan's- and take no othe-u, o- triei and not found wanting in thousand! of homes all over the country- if has won a place in the family medi-j cine closet among the reliable housej hold remedies, where it is kept a nausea. They are so pleasant to on-tne Kidneys. Doan's Kid- hold remedies, where it is kept a take and work so easily that they ney Pis owe their world-wide fame hand for use in treating cold in th v. .. i v... t .. rn The fnf v, , iuh.y uc laiveu v uiivmiR nr nnv tivno " v"v "'-, tnuL lurv htr rAimnio hoai -tuc no ennn a annua nipimies FOlloW thfi examnlfi nf RnlPm nltUann r u i i,.,i,i i. tua nrMml and you will be convinced that this inary sneezing or snuffling. It give 1 3 !0' immediate relief and a day or two'f ; Jonn Cougar,, 845 North Seven- treatment will put a stop to a cold,' teentH( street, Salem, Oregon, says: which might, if not checked, becon uoan s Kidney Pills have been used chronic and run into a bad case of In my family with great benefit. I al- catarrh. J'j may be taken by anyone at any time They thoroughly tone up the whole system to healthy activity. Rexall Orderlies are unsurpassa ble and ideal for the use of children, old folks and delicate persons. We cannot too highly recommend them to all sufferers from any form of con stipation and its attendant evils. Three sizes, 10c, 23c and 50c. Re member, you can obtain Rexall Rem edies only in this community at our store The Rexall Store. J. C. Per ry, Druggist. -a t $19 AAA Here is a bona fide 8 per cent investment: Three Modern houses on large corner property on street car and paved street. There is room for another house. The improvements alone are worth more than price asked. This property is now earning $80 a month rent, it is centrally located, and besides paying interest from the start is bound to increase rapidly in value. E.Hofer&Sons INVESTMENTS tery or bowel complaints. It Is pleas. KM FstatS InStiratlCe ant to take and Mimiiv .i.,.ki. ,lwul lU3UiautC children and adulta. Sold br illSoc r i c c deaien. " ' j 21 3 S. Commercial St., Salem , dealer. Journal Want Ads Bring Results Phone 82. Common Colds Mnst He Taken Seriously ! For unless cured they sap the vitality ! and lower the vital resistance to more serious Infection. Protect your child- ran eml ,-nni.BAlf 1... . .v, ouu juinacii uy me prompt use T ; of Foley's Honey and Tar Compound ' t ; ana note us quick and decisive re j suits. For coughs, cold, croup, whoop i lng cough, bronchitis and affections i of the throat, chest and lungs it Is an iever ready and valuable remedy. Re member the name, Foley's Honey and i Tar Compound and refuse snhatifntoa The genuine is in a yellow package. Red Cross Pharmacy (H. Jerman). o The grain crop of the valley is un usually good, both in quality aad quantity. o Mas Millions of Friends. How would you like to number your friends by millions as Bucklen's Arnica Salve does, Its astounding cures In the past forty years made them. Its the best salve in the world for sores, ulcers, eczema, burns, bolls, scalds, cuts, corns, sore eyes' sprains, swellings, bruises, cold sores. Has no equal for piles. 25c at J. C. Perry's. o Children Cry FOR FLETCHER'S OAST O R 1 A New Fall Millinery ALL NEW STYLES, GREATEST VARIETY, MODERATE PRICES lie As in tormer seasons we take the lead, vou wi l surely be pleased here, We have the hest nf materials, all the new things desirable, nice trimmed hats, Street hats and shapes, i CHICHESTER S PILLS C." -in . , " """a lli-a. IHi in.) tw ,, sotaBYwtiTiCKTsMmiifRE" y-r g.n.Jllf'-liWMl ,1 i It'l M'"!'1"! ill S y mn mupbfrekh fbiilei .Vl.W.iV Ii UL! Anii i o ............ ..., , r ii,-.-, J "il CTi. Kit.,, fc, jli.,,, )limm.1TO. M 1101 Tl l.t. ' ,-.! Sr.i. s.,. a W. tk wl jrtr v tU SWEATERS Sweaters for everybody, large stock, from the tiny ones to the extra large ones; Girls', Eoys', Ladies and Men's special good values, UMBRELLAS Children's umbrellas, fancy handles only 50c. umbre las, rust proof, gloria silk, only $1.50, umbrellas, from 50 cents up. Ladies' 1en CLOTHING I Heavy all wool men's suits, new styles, well made, best of linings and trimmings ony $12.00. Boys' suits, new fall stock just received. Low prices, . . I SHOES t We carry Hamilton and Brown Shoes, all leather, m:.de t to wear." f . . . I ROSTEIN & GREENBAUM 1 St Mia w swta y Dr. J. C. So