
    J. L. ALBERSON, Respondent, v. P. A. MAHAFFEY, Appellant.
    Appeal — Appidavits op Sureties in, must be Piled when. — The affidavits of the sureties in an undertaking on appeal must be filed contemporaneously with the filing of the undertaking.
    Cross-motion — Within what time must be made. — A cross-motion for leave to file a new undertaking must be made before a motion to dismiss the appeal because of the defective undertaking.
    Appeal from Union County.
    
      L. B. Ison, for appellant.
    
      L. O. Sterns, for respondent.
    A motion was made in this case to dismiss the appeal upon the ground that no affidavits by the sureties in the undertaking on appeal as to their qualifications were filed with the undertaking. Upon the hearing of the motion, appellant asked leave to perfect his appeal by filing a new undertaking.
   By the Court, Shattuck, J.:

The undertaking on appeal is defective. There is no affidavit of the surety as to his qualifications, ánd no recital or averment whatever of his qualifications. This case is within that of Holcomb v. Teal, 4 Or. 352, which requires the affidavits of the sureties in an undertaking on appeal to be filed contemporaneously with the filing of the undertaking. The motion to dismiss the appeal because of the insufficiency of the undertaking, should be allowed. No amendment of the undertaking, or leave to now perfect the appeal by filing a new undertaking, can be allowed. The rule announced on this subject in Cross v. Chichester, 4 Or. 114, should apply to this case. The application to file a new undertaking ought to have been made in the form of a cross-motion before the hearing of the motion to dismiss.

Motion to dismiss allowed.  