
    Submitted on briefs June 23,
    modified July 7, 1914.
    NICHOLSON v. NEWTON.
    (142 Pac. 614.)
    Justices of the Peace—Appeal—Filing Undertaking.
    1. Under Section 2458, L. O. L., providing that, within five days from the filing of a notice of appeal, an undertaking on appeal must be filed, where the undertaking, though executed in time, was not filed within the five days, the appeal was properly dismissed.
    Costs—Appeal from Justice Court—Issue of Law.
    2. On the dismissal of an appeal from a justice of the peace on motion, the respondent is entitled to an attorney’s fee of $10 for the trial of an issue of law.
    Costs—Items—Witness Fees.
    3. Where a transcript on appeal from Justice Court was filed in the Circuit Court June 7th, and on June 16th the court set the case for hearing on July 1st, on which date respondent filed a motion to dismiss the appeal, which was granted, no witnesses being called, an allowance to the respondent of witness fees as costs is improper.
    From Clatsop: James A. Eakin, Judge.
    In Banc. Statement Per Curiam.
    This is an action by H. E. Nicholson, doing business under the name and style of the Interior Decorating Company, against Fred Newton.
    The case was commenced in the Justice’s Court, where a judgment was rendered May 17, 1913, against the appellant. May 21st a notice of appeal was served and filed. An undertaking was prepared and executed the same day, but was not filed until May 31st. The transcript was filed in the Circuit Court June 7th. On June 16th the Circuit Court set the case for hearing on July 1st. On that day the respondent filed a motion to dismiss the appeal because of the failure to file the undertaking within the time required by law. This motion being sustained by the Circuit Court, the appeal was dismissed, and a judgment for $49.20 rendered against the appellant for costs in the Circuit Court; the various items making up the amount were excepted to by appellant. Submitted on briefs without argument under the proviso of Supreme Court Eule 18: 56 Or. 622 (117 Pac. xi).
    Modified and Affirmed.
    For appellant there was a brief over the name of Mr. Clarence J. Curtis.
    
    For respondent there was a brief over the name of Mr. Victor J. Miller.
    
   Opinion

Per Curiam.

The manner of taking an appeal in the Justice’s Court is regulated by the chapter of the code in relation thereto. Section 2458, L. O. L., provides that, within five days from the filing of the notice of appeal, an undertaking on appeal must be filed. Counsel for appellant argues that where counsel have acted in good faith, and have neglected to do something required within a certain time, they may be permitted to do the same; but these cases were under the section of the code relating to appeals to this court, and this section does not apply to appeals from Justices’ Courts. The filing of the undertaking was necessary to give the appeal validity, and the defect cannot be remedied by filing a new undertaking after the time has expired. The court below did not err in dismissing the appeal.

As to the costs, there was an issue of law tried on the motion to dismiss, and the respondent is entitled to an attorney’s fee of $10. There is charged up to the appellant witness fees amounting to $39.20. This sum, we think, cannot be allowed. “A man cannot have his cake and eat it too. ’ ’ Counsel had ample opportunity to have filed his motion before the case came up for trial, and it would be unjust to allow him this large sum for witnesses when none were needed and none called.

Tbe judgment will be modified by striking out tbe sum charged for witnesses,, and otherwise affirmed; appellant to recover his costs in this court.

Modified and Affirmed.  