
    Circuit Court for Multnomah County,
    June Term, 1868.
    J. G. CHAPMAN v. PATRICK RALEIGH.
    Transcript or Docket. — -Where a transcript on appeal from a justice’s court was filed, and was treated as a transcript filed with the county clerk to authorize the judgment to be docketed in the circuit court, and an execution was issued out of the circuit court, the execution was set aside on motion.
    The plaintiff recovered a judgment in justice’s court for $75, on tbe 12th of June, 1858. On tbe 7th of July following, tbe defendant appealed to tbe circuit court. On the same day tbe plaintiff filed a counter undertaking, in pursuance of section 71 of tbe act relating to justice’s courts.
    On tbe 16th of July tbe defendant filed with tbe clerk of this court a transcript of tbe docket and the original papers in tbe cause, in pursuance of section 72 of tbe act. Thereupon tbe plaintiff caused an execution to issue out of tbe circuit court to enforce tbe judgment set forth in tbe transcript.
    Tbe defendant now appears and moves this court to set aside tbe execution.
    
      J. G. Chapman, in person.
    
      Shattuck, & Killin, for the defendant.
   By the Court;

Upton, J.

Tbe plaintiff claims tbat in filing a transcript in pursuance of tbe statute tbat regulates appeals, be has also literally complied with section' 50, which provides for docketing judgments rendered by justices of tbe peace in tbe judgment docket of tbe circuit coart; and that therefore he is entitled to execution issuing out of this court. He, as respondent, claims, that having given a counter undertaking, he is, according to the spirit and intent of the law, entitled to an execution as if no appeal had been taken; and that if he was entitled to an execution issued out of the justice’s court before the transcript was filed, upon filing it he becomes entitled to one issuing out oí this court.

I do not think it is necessary to pass upon the various questions raised and argued, as to the sufficiency of the counter undertaking. I do not think it was the intent of the Legislature that the transcript on appeal should serve the double purpose of bringing the case here for a trial de novo and of standing as the record of a final judgment, to be enforced in pursuance of section 50.

Nor is the proceeding already taken a literal compliance with section 50. This transcript is required to be filed with the clerk of this court, while section 50 requires the transcript that shall serve as a basis of a judgment lien, and of an execution, to be filed with the county cleric.

It is true that both these offices are united in the same person; and there is but a technical difference in this respect in the modes of proceeding. But this is sufficient to prevent a course of proceeding that claims no greater merit than that of being a compliance with the letter of the statute, while, it evidently disregards its spirit and intent.

The motion should be granted.  