Gardner v. Pacific & E. Ry.

Decided February 13, 1912

Oregon Supreme Court · decided 1912-02-13

From Jackson: Frank M. Calkins, Judge. On Motion to Dismiss. Statement by Mr. Justice McBride. This is an action by Myrtle Gardner, administratrix of Walter C. Gardner, deceased, against the Pacific & Eastern Railway, to recover for the death of Walter C. Gardner in a railway accident. A jury trial was had on May 18, 1911. The jury returned a verdict against defendant for $7,500.

Motion Allowed · Decided 1912-02-13

Mr. Justice McBride

¶1delivered the opinion of the court.

¶2The scope of the nunc pro tunc order is not clear. As no objection had been made to the entry of May 25th, and a motion for new trial had been subsequently filed, it is clear that the nunc pro tunc order was unnecessary, and no new judgment was ever entered. Nor was the judgment of May 28th vacated. The intent seems to have been, not to enter a new judgment, but to make an order which would have the effect to make the judgment already entered take effect and be in force from May 18th. There is only one judgment here, and that is the one entered on May 25th, and defendant’s right to appeal from that was lost by failure to file its transcript within SO days after the appeal was perfected.

¶3The appeal is dismissed. Dismissed.