§ 515. Notice of § 524. [515.] When a notice of a motion is necessary, Oct. 11, 1862, it shall be served ten days before the time appointed for the hearing; but the court, or judge thereof, may prescribe, motion. by order indorsed upon the notice, a shorter time. Notice of a motion is not necessary except when this code 16 Or. 28. requires it, or when directed by the court or judge in pursuance thereof. Notice of motion must specify the points upon which the motion will be made: Freeborn v. Glazer, 10 Cal. 338. If notice of motion is given only a few hours beforehand, the or der will be deemed as having been 13 Or. 134. 19 Or. 513. $889. Refusal of ap order, effect of. § 525. [889.] If an application for an order, made to Oct. 11, 1862, a judge of the court in which the action, suit, or proceeding is pending, be refused in whole or in part, or be plication for granted conditionally, no subsequent application for the same order shall be made to any other judge. A viola- 15 Or. 472. tion of this section is punishable as a contempt, and an order made contrary thereto may be revoked by the judge who made it, or vacated by the court, or judge thereof, in which the action, suit, or proceeding is pending. TITLE III. OF NOTICES, AND SERVICE AND FILING OF PAPERS. § 526. Notices to be in writing. § 527. Notices and other papers, how served and upon whom. § 529. § 528. When service may be made by mail; time allowed for distance. § 530. § 531. When party absent from the state, how service made. If there be an § 532. § 533. § 534. All papers to be filed; how filed, and when clerk may decline to file $516. Notices in § 526. [516.] Notices shall be in writing, and notices oct. 11, 1862, and other papers shall be served on the party or attorney in the manner prescribed in this title, where not other- writing. wise provided by this code. Oct. 11, 1862, $517. Service of notices. 9 Or. 511. 10 Or. 155. 14 Or. 470. 15 Or. 340. 16 Or. 11. Oct. 11, 1862, 518. Service by mail. § 527. [517.] The service or deposit in the postoffice, when served by mail, may be made by any person other than the party himself. The proof of service shall be the same as the proof of service of a summons, and shall be returned with the original notice, or other paper of which service is made, at the time and place therein prescribed for the hearing or other proceeding to be had thereon. The service may be personal, by delivery of a copy of the notice or other paper to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence from his office by leaving the copy with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening in a conspicuous place in the office, or if it be not open to admit of such service, then by leaving it at the attorney's residence with some person of suitable age and discretion; 2. If upon a party, it may be made by leaving the copy at his residence between the hours of six in the morning and nine in the evening with some person of suitable age and discretion. county service can only be had on the party: Lindley v. Wallis, 2 Id. 204. The return of service which is required to be made between certain hours must show when it was made: Lindley v. Wallis, 2 Id. 205. When a notice of appeal was served by leaving a copy of the notice at the place of residence of the person to be served, with a person of suitable age and discretion, but the return did not show that it was so left "between the hours of six in the morning and nine in the evening," held, that the proof of service was not sufficient: Id. § 528. [518.] Service by mail may be made, when the person for whom the service is made, and the person. on whom it is to be made, reside in different places, between which there is a communication by mail, adding 518. one day to the time of service for every fifty miles of Oct. 11, 1862, distance between the place of deposit and the place of address. Service by mail. This is good only where the person making the service and the person on whom it is to be made reside or have their offices in different places, between which there is a regular communication by mail: People v. Alameda T. Co., 30 Cal. 184. The "person making the service "is the attorney, or party giving the notice, etc., and not the process server: Moore v. Besse, 35 Id. 186. It is necessary that the notice be mailed at the place where the at torney serving it has his office or Service by mail. § 519. Deposit of oflice. § 529. [519.] In case of service by mail, the copy oct. 11, 1862, must be deposited in the post-office, addressed to the person on whom it is to be served, at his place of resi- copy in postdence, and the postage paid. The service shall be deemed to be made on the first day after the deposit in the postoffice that the mail leaves the place of deposit for the place of the address, and not otherwise. See the preceding section. $ 520. Appearance, § 530. [520.] A defendant appears in an action or oct. 11, 1862, suit when he answers, demurs, or gives the plaintiff written notice of his appearance, and until he does so how made. appear he shall not be heard in such action or suit, or in any proceeding pertaining thereto, except the giving of the undertakings allowed to the defendant in the provisional remedies of arrest, attachment, and the delivery of personal property. When the defendant has not appeared, notice of a motion or other proceeding need not be served upon him, unless he be imprisoned for want of bail, or unless directed by the court, or judge thereof, in pursuance of this code. Appearance generally: See the note to § 62 [61], ante, pp. 188, 189. A formal notice of appearance under this section is unnecessary, un less the right of the attorney to appear § 10. § 531. [521.] When a party is absent from the state, Dec. 20, 1864, and has no attorney in the action or suit, service may be made by mail, if his residence be known; if not known, Dec. 20, 1864, 10. Service on party absent from state. 2 Or. 204. 7 Or. 79. 20 Or. 129. Oct. 11, 1862, $522. Application of on the clerk for him. When a party, whether absent or not from the state, has an attorney in the action or suit, service of notice or other papers shall be made upon the attorney, if he reside in the county where the action or suit is pending, instead of the party, and not otherwise. § 532. [522.] The foregoing provisions do not apply to the service of a summons or other process, nor so foregoing pro- much thereof as allows service to be made of any notice or other paper to bring a party into contempt, otherwise than upon such party personally. visions. Oct. 11, 1862, $523. Notice valid, § 533. [523.] A notice or other paper is valid and effectual, although defective either in respect to the title though defec- of the action or suit in which it is made, or the name of the court or the parties, if it intelligibly refer to such action or suit. tive in form. 14 Or. 266. Oct. 11, 1862, § 524. Filing of papers. § 534. [524.] All undertakings, affidavits, or other papers required by or provided for in this code shall be filed with the clerk, except when this code otherwise specially provides. A pleading or paper shall be filed by delivering the same to the clerk at his office, who shall indorse upon it the day of the month and the year, and subscribe his name thereto. The clerk shall not be required to receive for filing any paper unless the name of the court, the title of the cause and the paper, and the names of the parties, and the attorney, if there be one, is intelligibly indorsed on the back of it, nor unless the contents thereof can be read by a person of ordinary skill. Filing by clerk. Clerk may refuse to file papers if his fees are not paid; but if he receives them, places them among the files, with the date of reception, and with his name indorsed on them, this is sufficient filing though the clerk was not paid his fees, and though he in addition indorsed on the paper that it was not filed, because of failure to pay fees: McDonald v. Crusen, 2 Or. 258. TITLE IV. OF APPEALS. How judgment or decree reviewed, and when order to be deemed a § 535. § 536. § 537. How appeal is taken and perfected. § 538. Who may appeal, and how parties known. Undertaking for the appeal, and further one for stay of proceedings. § 539. Notwithstanding stay of proceedings, perishable property may be sold. When court may dispense with further undertaking. When proceedings stayed upon undertaking for appeal only. § 540. When respondent may enforce the judgment or decree notwithstanding stay of proceeding. § 541. Transcript, when filed, what to contain; if not filed appeal deemed abandoned. § 542. § 543. § 544. Rule upon clerk to further certify as to omissions in the transcript. Power of appellate court to affirm, modify, or reverse, and if neces- § 545. § 546. Intermediate order may be reviewed, and when restitution-directed. § 547. When damages given for delay, and the amount thereof. $525. Judgment or appealable. § 535. [525.] A judgment or decree may be reviewed oct. 11, 1862, as prescribed in this title, and not otherwise. An order affecting a substantial right, and which in effect deter- decree, when mines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial 5 Or. 361. right, and made in a proceeding after judgment decree, for the purpose of being reviewed, shall deemed a judgment or decree. Appeal generally. - An appeal is statutory, and was unknown to the common law, and cannot be extended to cases not within the statute: Pow ell's Appellate Proceedings, 104, sec. 6; Rupert v. Alturas Co., 2 West Coast Rep. 15 (Idaho); Gen. Custer Mining Co. v. Van Camp, 2 Id. 174 (Idaho); Van Camp v. Commissioners, 2 Id. 18 (Idaho). A party may waive the benefit of a right to appeal by accepting the benefit of a judgment: Atkinson v. Tabor, 2 Id. 105 (Col.). A party cannot claim both the benefit of the judgment, and at the same time appeal from it: Moore v. Floyd, 4 Or. 260. or 10 Or. 360. 10 Or. 395. 11 Or. 395. 12 Or. 314. be or. 421. 14 Or. 22. 14 Or. 29. 14 Or. 37. 15 Or. 442. 18 Or. 152. A final judgment for the purpose of 14 Or. 167. appeal means one which concludes the 15 Or. 90. parties as regards the subject-matter 16 Or. 214. in controversy in the tribunal pro- 16 Or. 246. nouncing it: King v. Platt, 2 Abb. 17 Or. 492. App. 527; S. C., 3 Abb. Pr., N. S., 20 Or. 520. 174; S. C., 34 How. Pr. 26. Where it is necessary to make another application to the court in order that the parties may obtain the full benefit of the judgment, it cannot be regarded as final: Butler v. Lee, 3 Keyes, 70; S. C., 33 How. Pr. 251. A judgment on demurrer to an answer where issues of fact are undisposed of is not final: Paddock v. Springfield Ins. Co., 12 N. Y. 591, and see People v. Haws, 34 |