"When a party in good faith gives due notice as hereinabove provided of an appeal from a judgment, order or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings, the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just." The mistake in the undertaking was unintentional, and, the case being here with the briefs filed and ready to be set for hearing, it would be an injustice to dismiss the appeal on account of a defect in the undertaking, which we believe the plaintiff will readily correct by presenting an undertaking complying completely with the statute. We will give her one more opportunity to do this, and an order will be entered allowing plaintiff 10 days in which to file a properly verified undertaking, in default of which the appeal will be dismissed. CONDITIONALLY ALLOWED. Argued October 19, modified October 22, 1915. (152 Pac. 271.) Department 2. Statement by MR. JUSTICE HARRIS. Rosa B. Sutton was divorced from her husband, James N. Sutton. The decree commanded the plaintiff to "deliver to the clerk of this court the photograph of James N. Sutton, Jr., deceased, the property of the defendant, in good condition, to be by said clerk delivered to the defendant." The trial court also awarded alimony to plaintiff, "the first payment thereof to be made on or about the twentieth day of the month succeeding the delivery of said photograph as aforesaid, and the subsequent payments to be made on or about the twentieth day of each and every month thereafter until the further order of the court." Each party appealed. The plaintiff complains because the court declined to allow more than $40 per month as alimony, and she also contends that error was committed in ordering a delivery of the photograph. The defendant insists that the plaintiff is not entitled to any sum as alimony; and he argues, too, that the court erred in not permitting the introduction of certain testimony. MODIFIED. For appellant there was a brief with an oral argument by Mr. H. E. Collier. For respondent there was a brief and an oral argument by Mr. Frederick H. Drake. MR. JUSTICE HARRIS delivered the opinion of the court. The assignments of error embrace three subjects: (a) The exclusion of testimony; (b) the photograph; and (c) the amount of alimony. 3. After hearing the testimony of plaintiff and defendant and reading the deposition of a witness, for plaintiff, and upon being told that the defendant had four or five witnesses, the court said: "I won't hear that many. ** I think I have heard enough of Mr. Sutton's story, and you can put one more witness on corroborating him, if you have a witness of that character." Counsel for defendant stated that he had not gone into the amount or nature of certain expenses which had been incurred, and that the defendant had alleged that he turned over to plaintiff all of the personal property worth about $1,300. The transcript of the proceedings records the court as then saying that: "I know how it is in these domestic troubles; the parties want to go into all kinds of details, and the court generally has to take a pretty broad view of matters of this kind. We will not go into details." Counsel for defendant responded thus: "We have two witnesses that won't take over five minutes apiece." And thereupon the court replied: "Well, call them." The defendant did not request permission to take any testimony over the ruling of the court, and he did not offer to pay for the recording of such testimony. Although the court did afterward admit evidence concerning the expenses incurred, and while there is no indication of any injury, still it is not necessary to determine whether the defendant was harmed because he did not follow the course prescribed by Section 405, L. O. L.: Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135); Durkheimer v. Copperopolis Copper Co., 55 Or. 37 (104 Pac. 895); Ollschlager's Estate v. Widmer, 55 Or. 145 (105 Pac. 717). 4. The trial was completed, and the court rendered an oral decision on February 10, 1915. A formal decree was signed and entered on February 19th, and afterward, on April 17th, the trial judge filed a certificate which recites: "That prior to the making, settling and signing of the findings of fact and conclusions of law and the making, granting and signing of the decree herein the following statements and admissions were made to the court with reference to two large photographs of a deceased son of the parties to said suit as follows, to wit: "That just prior to the close of the trial of said suit on the tenth day of February, 1915, Frederick H. Drake, attorney for defendant, stated to the court that plaintiff has in her possession two identical large photographs of the deceased son of the parties to this suit, one of which is the property of defendant, and asked that plaintiff by the decree be required to turn over to defendant one of said photographs. "That thereupon H. E. Collier, attorney for plaintiff, admitted and stated to the court that plaintiff has in her possession the said two large photographs; that he would advise plaintiff to turn one of them over to the defendant; and that, therefore, he did not deem it necessary to insert the provision requested by attorney for defendant in the decree. "That thereafter, to wit, on the nineteenth day of February, 1915, the matter of the settlement of the findings of fact and conclusions of law came on to be heard by the court, the plaintiff and defendant appearing by their attorneys, H. E. Collier and Frederick H. Drake, respectively, at which time attorney for plaintiff stated that plaintiff refuses and would not turn over to defendant either one of said photographs." The ownership of the photograph is not made an issue by the pleadings, and it was not even mentioned in the evidence. Assuming that the attorney had a right to bind his client by admitting that defendant owned one of the photographs, it will be noted that he did not attempt to exercise the right because no such admission was made. He only admitted that the plaintiff had in her possession the two large photographs, and that he would advise her to turn one of them over to the defendant, and, furthermore, ample notice of the position taken by plaintiff was given to all parties concerned before the formal decision and decree were entered. While the decree has the merit of being fair and equitable, nevertheless the court was without authority to order the return of the photograph. 5. Pursuant to an agreement of the parties defendant stipulated to transfer his personal property and did convey his real estate to a trustee, who was empowered to sell the land according to his own judgment, and from the proceeds to pay a certain mortgage on the property, to satisfy certain indebtedness of James N. Sutton, and then to deliver the balance, if any, to the plaintiff. The defendant takes the position that the agreement made between the parties precludes the plaintiff from demanding alimony. The mortgage was foreclosed in August, 1914, so that the trustee was practically shorn of his power. The trustee had the right to sell according to his own judgment. The plaintiff did not derive any benefit from the transfer to the trustee, and therefore Rosa B. Sutton is not barred from claiming alimony. It will serve no useful purpose to relate or discuss the evidence appertaining to the financial condition of the parties; but it is sufficient to say that the ages of the parties, the salary received by the defendant, the loss of property once owned by James N. Sutton and the obligations which he is endeavoring to meet, and the attitude of the plaintiff, when considered together, convince us that the amount of alimony allowed was proper, and the conclusion reached by the trial judge was fair and just to both parties. The decree is modified so far as it relates to the photograph, but without prejudice to the right of defendant to avail himself of any appropriate remedy |