Barber v. Gladden

BRAND, Justice. This is an action by George R. Barber wherein he seeks a writ of habeas corpus against Clarence T. Gladden, Warden of the Oregon State Penitentiary, defendant. As will later appear, the plaintiffs action was dismissed and he has appealed to this court. However, the plaintiff has filed in this court no transcript on appeal as required by ORS 19.070 and no judgment roll, as provided by ORS 19.090 and by Rule 3 of this court. Our knowledge that an appeal has been filed is derived from a motion filed by the Attorney General, with affidavits and exhibits attached thereto. Under the statutes now in force, this court acquires jurisdiction of an appeal in a civil case when the notice of appeal has been given, and entered in the journal of the court or filed with the clerk, as the case may be, * * *. ORS 19.030(3). We have been made aware that jurisdiction has vested in this court by the filing of the motion of the Attorney General pursuant to Rule 33 of this court. The motion thus filed prays for an order dismissing the appeal on the ground that the plaintiff has failed to file an undertaking on appeal as required by ORS 19.030(4) and 19.040. Attached to the motion is a copy of the plaintiffs notice of appeal from the order of the circuit court of 17 April 1956, duly certified by the county clerk. Also attached is an affidavit of an assistant attorney general to the effect that on 21 May 1956 he was served with plaintiffs notice of appeal from the order of the circuit court dismissing the action, and that no undertaking had been served upon him. There is another affidavit that no undertaking on appeal has been served upon