Daily capital journal., December 28, 1911, Page PAGE FIVE, Image 5

I Annual 1
MILT CAPITAL J0C25AL, 8AUM, OEEGOX, THCRSDAT. DECEMBER 88,
WOMEJPS RAIS
$18.00 values ......
$16.00 values
$15.00 value V. .. j
$ 7.50 valuep
$ 1.00 Children '8 , Rain Coats
earances January White Sale
SCENTLESS
" -crSOia, tven If We Mut svn a a i
:.$9.vo
..Wo
..$3.9$
..$2.50
3 :
:.;. K
VUKD OM.T
J EXTRA SPECIAL OX 6IXGHA
"c Bna loc Gingham HHc
12Hc Gingham ... " 914.
10c Gingham ; .V V. . 8c
Customer.
Men'saridBoy's
CLOTHING,
SUITS
HANDKERCHIEFS, 2 for 25e
Cross-Bar Handkerchiefs, regular
price 5c each, now 2 for 5c.
Women's Suits and
50 per cent less. '
Coats, 331-3 to
and
O' CO ATS
Reduced
enoi
25
9
Furs! Furs!
; k mm
m
0 J&fe .
$5.00 Values,'.",..
$3.00 values-..,.
$ .75 values
Values from
...12.50
.$U0
V S7He
$5.00 to $60.00
ONE-THIRD LESS
50c MUFFLERS, 25c
Men's Shirt values to $1 6Sc
See them In Court Street Window
Broken lines of shoes 20 per cent less
Men's Rain Coats 25c per cent less
White Aprons
Tea and chafing dish aprons, 20 per
- cent leBS
Large Feather Pillows 49c each,
'.. Guaranteed all feathers.
Children's Coats
ONE-THIRD
LESS
Women's and Misses' Knit Underwear
20 per cent less.
SATURDAY OJiLY-Remnants, 5 and
10c yard. These Include silks, wool
en goods, linings, etc. Sale begins at
9 a. m. Limit 10 yards to j, customer.
Minium
f When at Portland
Go to the
BOWERS
OREGON SUPREME
COURT DECISIONS
(Continued from page four.
f t fee of , I
si
J3J3UDL
m mm m mm jy.
II!
"1
Rates $1,00 up, Break
fast and lunch 50c, Din
ner $1,00, Also a la
Carte service in grill. One
block from Oregon Elec
tric on 11th and . Wash
ington streets, Salem
people cordially invited to
make our nouse
headquarters,
mere physical act of filing the paper
and not with the right' to have It filed.
They are applicable to the former sys
tem under which the fee was the pri
vate perquisite, of the officer which he
might waive at his pleasure. Now,
however, the filing fee Is the property
of the county the prepayment of which
must be exacted by the clerk. Its pay
ment In advance Is a condition prece-
torneys knew that the scope of the
officer's duty was thus restricted. Still
, iimner, me lees lor maKing me tran-. dent wIthout the performance of which
script, as well as the one required to tne rlght to nave the "paper filed does
be paid before filing the same, being not exlst A preceient controlling
.u y.o.u icuo U, ins otai- tne case in hand is round In Hilts v.
ute, the appellant and his attorneys Hilts 43 Or 162 72 Pac 697
their
F. P, WILLIAMS, formerly with Marion
HMMMMMMM
E. HOFER & SONS
Investments, Loans, Real Estate
INSURANCE
We write Fire. Life; Accident, Liability, Automobile,
Bonds and All Branches of Insurance.
2 1 3 S. Commercial St Phone 82
MMM tt
.
Coming soon
il GRAND OPERAJiOUSE
One Night Only Friday
EJecember 29
JACK HOSKINS
Announces his sensational
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lionaire
- .' ' with that coming Eminent oCmedlan X
GEO. C1BSES AS 3-W PIEBPOST
A lgU is worth a, you pay to . but here" we offer ,ou this at- j
trcUoa for the nrst tl.e at popular Pr,e5c. 50c and 75c.
could easily have computed them and
tendered tlie amount to the clerk; but
even this was not done or attempted.
The whole transaction as disclosed by
the affidavits appears to have been an
effort on the part of the appellant to
do business with the county clerk on
a credit basis when the statute ex
pressly requires It to be done for cash,
in advance.
We are not unmindful of the terms
of section 647 L. 0. L. providing that
"A pleading or paper shall be filed
by delivering the same to the clerk
at his office, who shall endorse upon
It the day of the month and the year
and subscribe his name thereto." We
have no dlsposliton either to overturn
the doctrine of such cases as McDon
ald v. Crusen, 2 Or. 258; Conant's Es
tate, 43 Or. 530, 73 Pac. 1018, and Dade
v. Hibuerd, 50 Or. 501, 93 Pac. 364,
when considered In the light of the
conditions under which they were de-
An appellate court can acquire Jur
isdiction only in the way marked out
by the statute. We cannot turn aside
from the beaten path thus established
and say that the clerk ought to have
disobeyed the law which requires him
to exact fees in advance and forbids
him to file the transcript until the
filing fee Is paid.
The action of the circuit court In
dismissing the appeal Is affirmed. :.
Bean, J. (dissenting.) This Is an
appeal by contestee from a Judgment
of the circuit court dismissing' an ap
peal from a decree of the county court
of Malheur county.
On June 14, 1911, the county court
rendered a decree cancelling a will of
Mary Elizabeth Hart, at which tbJie
the contestee gave due notice of an
appeal from the circuit court. An un
dertaking on appeal was served nd
filed June 15, 1911. Allowing thirty
days from the expiration of the time
he may not have placed thereon the
required endorsement. But that sec
tion and these cases deal with the
cided. They hold in substance that a exceptng to tne Bufficiency of the
paper Is deemed filed when left with uret,eg under the ,)rov8onB of U O.
the clerk for that purpose, although!, r,n ,ha ., waa reire,i
J to file the transcript In the circuit
court on or before July 21, 1911, under
section 554, L. O. L., as conceded by
counsel for both parties. The tran
script was endorsed by the county
clerk as filed "July 24, 1911." This
was done on August 15, 1911, and the
contestant moved to dismiss the ap
peal for the reason that the same was
not filed within the time required by
law. Affidavits In resistance and In
support of the motion were filed.
Those on. behalf of contestee are to
the effect that on July 13. 1911, the
county tUirk, pursuant to the request
of contestee's counsel made at the
. time tot I filing the undertaking, had
prepared and certified to the tran
script. About this time two of the
attorneys for contestant examined the
transcript, requested the clerk to
amend the' certificate thereto, and file
the same that day. They offered to
pay the filing fee, whMi the clerk
declined, saying that he wanted the
fee for making the transcript, but did
not then know the exact amount. He
said that he would inform them later,
and that Martin- V. Prather could pay
the same. There is some contention
as to when this occurred, but It ap
pears to have been sometime previous
to July 21, 1911. K O. Wheeler and
George E. Davis, attorneys for contes
tee, fixed the date u "July 14, 1911,"
and Frank L. Morfltt, county clerk, as
"July 13 or 14, 1911." The clerk stales
that the transcript baa remained in
his custody ever since that time.
May you have a prosperous and a
pleasant year, and if you will let us
attend to your Laundry, we will
promise you prosperity and pleasure
with your linen anyway. Let us have
your Shirts, CollarB, Cuffs, Fancy
Vests and other things to "get up,"
and you will never have cause to re
gret, you will never lose an article
or have it damaged, never suffer de
lay when you want your wash and
never regret a single dime you pay
us for our work. We guarantee not
to crack your collars.
Salem Steam Laundry
136-166 S. Liberty Street
Telephone Main 25
Nothing further waa done In regard
thereto, until after the time for tiling
had expired, when different requests
were made by counsel for the parties,
as to the date of tiling marks to b
endorsed thereon, a.nd the matter was
held In abeyance until the next month.
The clerk states that the fees were
paid as requested, but that he does not
remember of any specific demand be
ing made by counsel for contestee, to
file the transcript until July 24, 1911,
when he was requested by one of the
attorneys for contestee to file the same
as of July 13, 1911; but that a request
to do so might have been made by
them on either July 13 or 14, 1911.
The transcript was ordered and made
for no other purpose than for filing,
and the form of the request is not
material. The affidavits of A. N. So
llss, R. M. Duncan and J. W. McCul
looh, attorneys tor contestant. In sup
port of the motion, are to the effect
that twq of the counsel for contestant
examined the transcript on the even
ing of July 21, 1911, and found It not
marked as filed; that they were In
formed by the clerk that no request
had been made to file the same, and
that the tiling fee was not paid until
August 14, 1911; that on August 15,
1911, a similar examination was made
before the transcript was marked
filed; that George E. Davis, one of
the attorneys who claimed to have
examined the transcript, was not In
Malheur county on July 14, 1911, and
was absent from Vale from July 11
until July 18, 1911. As It appears
from, the decree, at the time of the
argument, Judge Davis stated that he
was. pot certain whether he was In
the county clerk's office on July 14th
or 18th, It might be noted that it Is
the accuracy as to dates, and not the
veracity of the affiants, that la ques
tioned. There l no controversy over
the fact that the transcript was pre
pared and certified to, and In the
hands of the clerk on July 13, 1911,
where it remained. This last date Is
the only one that serves as a guide,
the endorsement of the filing having
been made about a month after the
controversy arose.
Section 647, L. O. L provides that
a pleading or paper shall be tiled by
delivering the same to the clerk at his
office, who shall endorse upon It the
date, and subscribe his name thereto,
A paper la said to be filed when it is
delivered to the proper officer and by
him received to be kept on file. Bou
vler's Law Diet., 19 Cyc 530. In re
ferring to the above provision of sec-
tlon 647, L. O. L., Mr. Justice Bean In
Conant's Estate, 43 Or. 530, 534, re-
marks: "It will be observed that this
statute dofis not make the Indorsement
by the clerk a prerequisite to the f 11
lug, or provide that no paper shall be
deemed filed without such Indorse
ment. The filing consists In delivering
the paper to the clerk with an inten
tion that It shall be filed. The law
Imposes the duty upon the clerk of
making the proper Indorsement
there-on, but his fu'lure to de so can
not affect the validity of the filing.
, A paper or document Is filed with
in the meaning of this statute when
it Is delivered to and received by the
clerk to be kept among the files of
his office, Bubject td the Inspection of
the parties."
In the case at bar, the affidavits
for the motion to dismiss, show that
on July 21, 1911. the attorneys asked
for the transcript, received the sains
and examined It. It Is urged that
It was In a drawer in the clerk's of
fice, but thl9 suggestion Is without
force, as It Is doubtful if In many of
the counties, there are a sufflclont
number of aiqieals to the circuit
court, to require a certain place for
the transcripts on appeal to be regu
larly kept. The a"ldavlts appear to
have been prepared upon the theory
that the time for filing expired on
July 15, 1911, and show that not only
was the transcript prepared, but the
same was examined and approved by
the attorneys for contestee. The
mere matter of an amendment to the
certificate thereof would not deprlvo
the appellate court of the Jurisdiction
which it acquired upon the filing of a
copy of the decree of the county
court appealed from, notice of appeal
with proof of service thereof, and un
dertaking. Sec. 654, U O. L. Tho
transcript Bhould be endorsed as
filed July 1.3 1911, that being the
date of the certificate.
It Is also now claimed that the
fees required by law for filing the
transcript were not puld within the
proper time. This, however, was not
the bal8 of the motion to dismiss the
appeal, nor was It referred to there
in, it Is clearly shown by the un
contradicted affidavits, that It was not
the fault of appellant that the filing
fee was not pair; that the clerk de
sired time to ascertain the numher
of foilos of the transcript, in order
to determine the amount to be paid,
and when the appellant and bli
counsel offered to pay the fees, at the
suggestion of the clerk, the matter
was delayed. The clerk had a perfect
right, and It was his duty to exact
and receive the fees for the tran
script before filing the same. 8uh
officer of the court, llk any other,
has the privilege of taking a sufficient
time to make a proper Investigation
and ascertain the correct amount;
and the action according to the de
position of the county clerk, did not
transgress the rule In Hilts v. HHts.
43 Or. 182, but wa tn perfect accord
therewith. In the last mentioned
esse It was held that a filing may de
pend upoa the terms of a statute au-
thorixlng It, and . will not become
operative until' the" requisites are
first complied with, at least In sub
stance. In the above' case no fees
were paid c tendered, and for that
reason the clerk did not file the tran
script within the required time, while
In the case at bar. both appellant and
his attorneys offered to pay the fees
before the time expired, and the only '
reason this was not done was the de
clination of the county clerk tol re-'
eelve the same, owing, to his not
knowing the exact amount. It is said '
in the majority opinion "that" the
appellant and his attorneys could
easily have computed them and ten-'
dered the amount to the clerk." In
my opinion, th counting of the words
In the transcript is1 one of the duties '
of the clerk for which he la paid a!
salary, and attorneys for litigants
are not .oqulred, either under the
law, or according td the usual prao-
nee, to perform this service.
In Templeton r. Lloyd (Or.) 115
Pac. Rep. 106S, there was a delay in
the payment of the fees in one of two
cases of the same name, which were
tried together In the circuit court,
and the fee having been paid before
the motion to dismiss on account of
non-payment was heard, the motion
was denied.
In Anderson v. Robinson decided on
November 14, 1911, In which no opin
ion was written, the transcript was
received by the clerk of this court,
September 25, 1911, within the time
allowed by law for filing the same.
The fees required to be paid for fil
ing did not accompany the transcript
Counsel for appollant, when his at
tention waa called to thta matter,
mailed the required fee, and It ar
rived at Salem,' Oregon, postofflce,
within the time allowed by law, but
was not actually received by the
clerk until the next day; and the
transcript was then endorsed as filed,
being a date after 'the time allowed
by law for filing the transcript On
motion to dismiss, It, was held that
the transcript was filed within the
required time, and,., the motion was
denied. There ts.nc reason under the
law why any different or stricter rule
should be applied. In regard to an
appeal to the circuit court, than pre
vails in the determination of appeals
to this court
Counsel for contestant cite the
cas of Binders v. Yager, 29 Iowa,
4G8, wherein an appeal was taken by
defendapt from a Judgment In a Jus
tice court, and the transcript was re
turned by the Justice to the clerk of
the circuit court; No fees were paid
by defendant as required, and ae-
PAcg nva
cording to a rule of the court the
plaintiff paid the fee, had the tran
script filed, and the judgment af
firmed. Also The State v. The Chi
cago and Eastern Illinois Rallruad
Company, et al, 145 Ind. 229 (43 N. 3.
226,) a case In which the agent nf
defendant presented articles of con
solidation to the secretary of state
for the purpose of flling for record.
and upon bWng informed that the
fees would be 125,000, to authorize
the filing, took the paper away wi'h
the consent of the olficer; and In an
action by the state to collect the fee.
It was held that the articles were not
filed and that the officer properly re
fused to file the document
All of the cases cited by counsel
for contestant are to the effect that
an officer has the right to decline to
file a document until the tees are
paid, which la In no way questioned
In the case at bar. Here as shown
by the affidavits of the clerk, the fees
were all arranged satisfactorily to
him, within the time allowed by law,
and I think the spirit ot the statute
was fully conformed to, and that the
letter thereof was substantially com
piled with. Any other rule would
Beem to sanction the clerk In unin
tontlally trapping the appellant, anil
might defeat the ends of Justice. The
appellant In, this case was dlllitunt,
and It waa no fault of his that the
transcript waa filed before the fees
were paid; see State v. Williams, S3
Or. 143. To require a party In a pro
ceeding to pay foes for the county,
when there Is no officer willing to re
ceive the same, or t'e held in default
for want of such payment would
analogous to requiring, the attend
ance of such party at court at hH
peril, when there was no court In
session.
I know nothing about the merits of
this case but think the appeal should
be heard. For these reasons I am
unable to concur In the opinion of
the majority of my associates.
o
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HUIE WING SANG CO. I
BIG STOCK OF FANCY GOODS
Silk Scarfs, Mufflers, Silk Handkerchiefs
and Shawls, Chinaware, (land Embroid
ered Fancy Goods
Klmonas, $1.00. )1.50, 11.75 to
17.60.
Boys' Suits, 2.75, 3, $3.50, $4
and up.
Men's Suits, $8,00, $9.25, $10.50,
$12 and up. '
Men's Flannel Shirts, $1.S:5,
$1.60, $1.75 and up. '
Wrappers, $1.00. $1.25. $1.50
and up. .......
Shoes, $1.25, $1.50, $1,65, $1.75
and up.
Dressing Sncques, 60c, 75c, $1,
$2.60.
$5 Fur Sets, now," set $3.50
325 N, Commercial Street,
75o a pair Silk Hose, now.. 60c
$3.50 Ladles Fancy Waist
sale. $2 50
Nightgowns, 60c, 75c, $1, 1 1 2 j
and up.
Ladles' Fancy White Apron,
S5c, 60c, ltd
Ladles' and Gonts' Nock
wear all kinds.
We have a new line of Sweat
ers 20 per cent lower
Silks Sale, 25c, 35o, 60c and
75c yd., and up.
Children's Bearskin Coats
$2.00, $2.25 and up
' Salem, Oregon
REAL ESTATE BULLETIN
E. HOFER 8c SONS
INVESTMENTS
KE8IDE.NCE PKOPEUTT.
No. 95. Eight room house and cor
ner lot, 75x100. House modern ani
almost new; $1850.
No. 96. Six room house and lui'K'J
corner lot .House, renting for $10 a
month; $1250.
A good 10 room house on South
church street only four blocks from
State on lot 90xl6r. (or only $2,000.
A five room old house on Marlon
street betweon Thirteenth and Four
teenth. Property, 125-foot front by
almost 300 feet deep. Price for
whole $2500, or can tell lots separ
ately. Six room modern house on corner
property on Chemeketa, 100x165.
Price, $4500.
BEAVEB BAM UXD.
We have some ot the finest deep
beaver dam peat land In the vallny
for only $130 per acre. This Is the
greatest onion and garden truck
land. Although this price Is less
than half of what Is generally asked
for this kind of land, It Is one of the
finest pieces ot Its kind In the local
ity. IX WALDO MILS.
106 acres In Waldo Hills only 2tt
miles east of the asylum farm for $00
per acre.
PKl'M! LAS I).
20 acres on top ot Jackson All),
seven miles south on Jefferson road,
for $150 per acre.
FIVE ACUKS TOWX
No. 97. Five acres with five room
cottage aud barn. About 10 blocks
from State street car line. Trke
only $2750.
We can show you several of the
prettiest and best arrang'id small
bungalows In Salem at prices that
are right '
.
We have a number of fine pieces of
city property to trad for farm prop
erty.
Come and tell us what you are
looking for.
We have several good bouses to
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E. HOFER & SONS
213 S. Commercial Street