State v. Bruce (Idaho). State v. Burns (Wash.). State v. Heber City (Utah). State, Kaiser v. (Kan.) State v. Luhano (Nev.). State v. McCool (Wash.).. State, McLaughlin v. (Okl. Cr. App.) State v. Minnick (Or.). State v. Niblett (Nev.). 475 Tsutakawa v. Kumamoto (Wash.). 766 273 State v. Nicomen Boom Co. (Wash.). 394 24 Turpin, People v. (Cal. App.). 680 .1069 Tyler, Ex parte (Okl. Cr. App.). 716 780 State v. Pilling (Wash.). State v. Powers (Mont.). 230 Uihlein v. Caplice Commercial Co. (Mont.) 564 583 Union County, Rynearson v. (Or.). 785 State v. Rodriquez (Nev.). State, Salter v. (Okl. Cr. App.). State v. Seattle (Wash.). State v. Seyler (Kan.). State v. Slater (Wash.). State v. Smith (Kan.). .1098 651 Utah Ass'n of Credit Men v. Budge (Idaho) 390 780 State v. Taylor (Wash.). .1029 State v. Third Judicial District Court for 631 Utah Light & R. Co., Cooper v. (Utah). 202 Utah Savings & Trust Co. V. Stoutt (Utah) 865 868 State v. Walton (Or.). State v. Whitney (Or.). 288 State v. Wm. J. Lemp Brewing Co. (Kan.) 504 974 State Bank of Chicago v. Plummer (Colo.) 1082 420 10 Walker v. Elmore County (Idaho). 389 111 .1085 173 992 Washington County, Lansdon v. (Idaho).. 344 Page Watt v. Kilbury (Wash.).. Weckter v. Great Northern R. Co. (Wash.) 1053 Williams v. Cole (Wash.). Weir, People v. (Cal. App.). Westerlund v. Rothschild (Wash.). Western Dry Goods Co., Peyser v. (Wash.) 750 W. F. Shaw & Co., Kauffman, Davidson & Wheeler Gold Min. Co., Secord v. (Wash.) 654 Winningham, Donaldson v. (Wash.). 403 Wilkinson, Boise City v. (Idaho).. Page 148 ...... 870 974 590 Wilson, Barde v. (Or.). 301 .1069 765 Wilson v. Board of Regents of University of Colorado (Colo.).. 1088 Wilson v. Collin (Colo.). 21 1 Winchester v. Payne (Cal. App.). 531 426 570 671 879 574 Co. 443 [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.] Alexander v. Munroe (Or.) 101 P. 903. Schafer v. Beecher (Or.) 101 P. 899. THE PACIFIC REPORTER. VOLUME 102. (54 Or. 22) MULTNOMAH LUMBER & BOX CO. v. WESTON BASKET & BARREL CO. (Supreme Court of Oregon. June 1, 1909.). 1. CORPORATIONS (§ 672*)-FOREIGN CORPORATIONS ACTION AGAINST - JURISDICTIONAL AVERMENT IN COMPLAINT. The statement that a defendant foreign corporation is engaged in business in the state, necessary to secure jurisdiction of its person, may appear anywhere in the record, and hence an averment of that fact in the complaint is not indispensable. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2646, 2647; Dec. Dig. § 672.*] 2. CORPORATIONS (§ 665*)-FOREIGN CORPORATIONS-ACTION AGAINST - JURISDICTION TO SUPPORT JUDGMENT. In absence of a voluntary appearance, no foreign corporation is subject to the jurisdiction of the state courts, unless it is engaged in the state in transacting some part of its corporate business when sued, which fact should appear somewhere in the record, to support a judgment rendered against it for failure to appear or answer after service of process on a resident agent. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 2571, 2595-2600; Dec. Dig. § 665.*] 3. CORPORATIONS (§ 669*) — ACTION AGAINST [Ed. Note. For other cases, see Corporations, essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record-either in the application for the writ, or accompanying its service, or in the pleadings or the finding of the court-that the corporation was engaged in business in the state." It will thus be seen that, as the necessary statement that the foreign corporation was engaged in business in the state might appear anywhere in the record, an averment of that fact in the complaint was not indispensable to securing jurisdiction of the person of the defendant. In the absence of a voluntary appearance, no foreign corporation is subject to the jurisdiction of the courts of this state, unless it is engaged therein in transacting some part of its corporate business at the time the action was commenced, which fact should appear somewhere in the record, in order to support a judgment rendered against such corporation for failure to appear or answer after the service of process upon one of its Aldrich v. Anchor Coal agents in Oregon. Co., 24 Or. 32, 32 Pac. 756, 41 Am. St. Rep. 831; Farrell v. Oregon Gold Co., 31 Or. 463, 19 Pac. 876. "A corporation," says Mr. Justice Curtis, in Lafayette Ins. Co. v. French, 18 How. 404, 407, 15 L. Ed. 451, "may sue in a foreign state by its attorney there, and, if it fails in the suit, be subject to a judgment for costs. And so if a corporation, though in Indiana, should appoint an attorney to appear in an action brought in Ohio, and the attorney should appear, the court would MOORE, C. J. In a petition for a rehear- have jurisdiction to render a judgment in all ing it is contended that the complaint here- respects as obligatory as if the defendant in does not state facts sufficient to constitute were within the state." In the case at bar a cause of action, in that it does not aver the jurisdiction of the person of the defendthat the defendant corporation was engaged ant corporation is not based on the service in business in Oregon, or allege that at the of the summons, thereby necessitating a time the action was commenced it had prop- statement of fact to the effect that the Westerty therein, and that, such being the case, ern Basket & Barrel Company was engaged the appearance by counsel did not confer in business in the state, but such jurisdicupon the court jurisdiction of the person of tion rests upon the voluntary appearance of the defendant. In St. Clair v. Cox, 106 U. the defendant by its duly appointed attorS. 350, 359, 1 Sup. Ct. 354, 362, 27 L. Ed. neys, which is equivalent to personal serv༡༠༠ Mr. Justice Field, in speaking of the ice of the summons. B. & C. Comp. § 63. right of a court to hear and determine a In St. Clair v. Cox, 106 U. S. 350, 353, 1 Sup. cause against a foreign corporation which Ct. 354, 357, 27 L. Ed. 222, in discussing had not appeared in the action, said: "It is methods prescribed for securing jurisdiction *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 102 P.-1 2 (Or. The defendant herein appeared in the latter manner, and, having submitted itself to the jurisdiction of the court, it is bound by the judgment rendered; and, this being so, the petition for a rehearing is denied. (54 Or. 38) HANLEY v. STEWART. (Supreme Court of Oregon. June 1, 1909.) 1. APPEAL AND ERROR (§ 387*) - PERFECTING APPEAL "OTHER ACT." on were of the person of a defendant, it is said: "The, this suit was given September 11, 1908, and served and courts of the United States only regard judg- and 11 days thereafter a notice and an unappeal ments of the state courts establishing per- dertaking No exception was taken to the suffisonal demands as having validity or as im- filed. porting verity where they have been render- ciency of the sureties on the undertaking, ed upon personal citation of the party, or, and the appeal was perfected September 27, what is the same thing, of those empowered 1908 (B. & C. Comp. § 549), but no abstract or transcript on appeal was filed within 30 to receive process for him, or upon his voldays therefrom, as required. B. & C. Comp. untary appearance." § 553. The trial court, on motion of the appellant, December 16, 1909, dismissed the notice of appeal and all proceedings had in Another notice and an reference thereto. undertaking on appeal were thereafter served and filed, and the transcript was sent up to this court within 30 days from the filing of the second undertaking. The statute prescribes the time and manner of taking apas follows: peals, and contains a clause "When a party in good faith gives due noof an appeal from a judgtice ment, order, or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just." The "other B. & C. Comp. § 549, subd. 4. act" thus referred to, which is "necessary to perfect the appeal or to stay proceedings," is the filing of an undertaking on appeal, an omission to do which, through mistake, when the party has acted in good faith, has always been supplied, upon application therefor. Matlock v. Wheeler, 29 Or. 64, 40 Pac. 5, 43 Pac. 867; Elwert v. Norton, 34 Or. 567, 51 Pac. 1097, 59 Pac. 1118; Mendenhall v. Elwert, 36 Or. 375, 52 Pac. 22, 59 Pac. 805; Nottingham v. McKendrick, 38 Or. 495, 57 Pac. 195, 63 Pac. 822. The "other act" referred to in B. & C. Comp. 549, subd. 4, providing that, where a party in good faith gives due notice of an appeal, and thereafter omits, through mistake, to do any other act necessary to perfect the appeal, the court may permit an amendment or performance of such act, is the filing of an undertaking on appeal, an omission to do which through mistake may be supplied on application therefor. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2068; Dec. Dig. § 387.* For other definitions, see Words and Phrases, vol. 6, p. 5072.] 2. APPEAL AND ERROR (§ 387*)-PERFECTING APPEAL-AUTHORITY OF TRIAL COURT. When an appeal is perfected, the authority of the court to allow an alteration for the completion of some act relating to the filing of a proper undertaking necessarily ceases. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2068; Dec. Dig. § 387.*] 3. APPEAL AND ERROR (8 629*) - FILING OF TRANSCRIPT EXTENSION OF TIME. An appellant, discovering that it will be difficult to file a transcript within the 30 days limited therefor, may on application, as authorized by B. & C. Comp. § 553, subd. 2, obtain an extension before default occurs. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2765; Dec. Dig. § 629.*] 4. APPEAL AND ERROR (§ 627*)-FAILURE TO FILE TRANSCRIPT-EFFECT. Since an order of the trial court, made after an appeal was perfected, setting aside the notice of appeal, etc., is a nullity, the failure to file a transcript within the time prescribed after perfecting the appeal operates as an abandonment of the appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2749; Dec. Dig. § 627.*] When an appeal is perfected, the authority of a court to allow an alteration or the completion of some act relating to the filing of a proper undertaking necessarily ceases. Nor is it requisite that power to set aside a notice of appeal and an undertaking should exist; for, when the appellant discovers that it will be difficult to secure and file a transcript within the 30 days limited therefor, the time can be enlarged, if application for the extension is made before default occurs. B. & C. Comp. § 553, subd. 2. As the appeal Appeal from Circuit Court, Jackson Coun- herein was perfected when the trial court ty; H. K. Hanna, Judge. Action by E. B. Hanley against W. H. Stewart. From a judgment for plaintiff, defendant appeals. Appeal dismissed. C. L. Reames, for the motion. W. I. Vawter, opposed. MOORE, C. J. This is a motion to dismiss an appeal. The facts are that a decree in set aside the notice, etc., its order was a nullity; and, the transcript not having been filed in this court within the time prescribed, the appeal was abandoned. Nestucca Wagon Road Co. v. Landingham, 24 Or. 439, 33 Pac. 983; Harrington v. Snyder (Or.) 101 Pac. 392. It follows that the appeal must be dismissed, and it is so ordered. |