Judgment was entered in the journal on the day the verdict was returned. The plaintiff's counsel served and filed a notice of appeal on the twenty-second day of June, 1916, and thereafter gave the required undertaking and caused a transcript to be filed in this court. The defendant's counsel move to dismiss the appeal because it was not taken within 60 days from the time the judgment was given as provided by law: Laws 1913, p. 617, subd. 5. APPEAL DISMISSED.

Mr. J. W. Biggs and Mr. G. A. Rembold submitted a brief without argument for the motion.

Contra, there was a brief submitted over the names of Mr. Lionel R. Webster and Mr. P. J. Gallagher, with an oral argument by Mr. Webster.

Opinion PER CURIAM.

Resisting the motion, the plaintiff's counsel filed an affidavit showing that when the verdict was found a motion was made to set it aside and for a new trial; that this application was taken under advisement by the court and it was tacitly agreed between counsel for the respective parties that no judgment should be entered or execution issued until the motion for a new trial was determined; that by reason thereof the affiant believed the judgment would not be entered until it was decided whether or not a new trial would be granted; that on the twenty-second day of May, 1916, he examined the court records and found the judgment had not been docketed; that some time later he learned from the judge that inasmuch as 60 days had about elapsed since the application for a new trial was made, the latter would allow the statute of limitations

to overrule the motion, and as soon as possible thereafter the notice of appeal was served and filed; that examining the docket and finding no judgment had been entered the affiant relied upon the implied agreement and was surprised to find that the judgment had been entered in the journal on the eleventh day of April, 1916, but not noted in the judgment docket until the twenty-second day of June, 1916, and then as of the eleventh day of April, 1916.

The counter-affidavit of defendant's counsel is to the effect that when the verdict was returned, the court upon their motion immediately gave judgment which was thereupon entered in the journal; that no agreement, express or implied, was made that the entry of the judgment should be delayed; and that the only understanding reached was that execution should not immediately be issued, but that a reasonable time would be allowed to pay the judgment.

When a trial has been had by jury, judgment shall be given by the court in conformity with the verdict and so entered by the clerk within the day on which the verdict is returned: Section 201, L. O. L. Section 548, L. O. L., which enactment was incorporated as Section 547, B. & C. Comp., was amended so as to provide that a motion for a new trial should not operate as a stay of the 6 months' time formerly limited in which to take an appeal until the motion was determined, but that the appeal to be effectual must be taken "within 6 months from the date of the original entry of judgment": Laws 1911, p. 195. Section 550, L. O. L., was subsequently amended so that an appeal to the Supreme Court should be taken "within sixty (60) days from the entry of the judgment, order or decree appealed from": Laws 1913, p. 617, subd. 5.

In construing these provisions it has been held that an appeal to this court must be taken within 60 days from the original entry of the judgment, when a motion for a new trial is not granted; Barde v. Wilson, 54 Or. 68 (102 Pac. 301); Macartney v. Shipherd, 60 Or. 133 (117 Pac. 814, Ann. Cas. 1913D, 1257); Gearin v. Portland Ry., L. & P. Co., 62 Or. 162 (124 Pac. 256); Hahn v. Astoria National Bank, 63 Or. 1 (114 Pac. 1134, 125 Pac. 284); Tucker v. Davidson, 80 Or. 254 (156 Pac. 1037). Assuming, without deciding, that parties to a suit or an action could by agreement extend the limitation prescribed by statute for taking an appeal from a judgment or decree, which enactment relates exclusively to a matter of jurisdiction of this court, the alleged tacit agreement relied upon by plaintiff's counsel is denied by counsel for the adverse party, except in respect to their promise not to issue execution until a reasonable time to pay the judgment had elapsed. No conclusive showing has been made by plaintiff's counsel to take this case out of the general rule referred to, and as more than 60 days had elapsed from the time the judgment was entered in the journal until the notice of appeal was served and filed, no jurisdiction of the cause was obtained by this court. The appeal is therefore dismissed.

APPEAL DISMISSED.

Argued October 31, affirmed December 19, 1916. BLACKWELL v. OREGON SHORT LINE RY. CO. (161 Pac. 565.)

Carriers-Delay in Transporting Livestock-Evidence.

1. Evidence in an action for delay in transporting livestock, held to sustain a finding that the cattle were ready to be loaded, in accordance with an arrangement with the carrier, at the time of the departure of the train.

Carriers Shipping of Livestock-Delivery to Carrier.

2. A shipper and the carrier may make such stipulations upon the matter of delivery to the carrier as they see fit, and when so made they are to govern.

Carriers Shipping of Livestock-Notice of Delivery to Carrier.

3. Where the station agent and conductor of a common carrier were informed the day before an intended shipment that the cattle were to be put into the pens for shipment according to custom, no further formal notice was necessary.

Carriers Shipping of Livestock-Acceptance of Shipment.

4. Where, in accordance with a recognized custom, a shipper notified the railroad company that he intended to ship a certain number of cattle next day, and had them ready to be loaded upon the arrival of the train, such acts, known to the carrier and not objected to, constituted a delivery and an acceptance of the shipment; no written receipt or bill of lading being necessary.

Carriers Shipping of Livestock-Liability.

5. The liability as common carrier begins with the actual delivery of the goods for transportation, and not merely with the formal execution of a receipt or bill of lading.

Carriers Shipping of Livestock-Delay-Evidence.

6. In an action for damages for delay in transporting a shipment of livestock, evidence as to its market value at destination and of shrinkage per head held admissible; the value at the point of shipment and at destination being concededly the same except for the shrinkage. Carriers Carriage of Livestock-Delay-Damages.

7. In an action for damages through delay in transporting a shipment of livestock, an instruction that the measure of damage would be the depreciation in the value of the animals caused by the negligent delay held proper.

Carriers-Delay in Shipment—Actions—Parties.

8. Where the agent of a common carrier is joined as defendant in a suit for damages for delay in a shipment of livestock, but no cause of action is stated against him, and instructions are given as though

the carrier were the sole defendant, his name should be stricken from the judgment.

As to liability of carriers of livestock for loss or injury, see note in 130 Am. St. Rep. 432.]

From Malheur: DALTON BIGGS, Judge.

In Banc. Statement by MR. JUSTICE BEAN. Plaintiff, N. Y. Blackwell, instituted this action against the Oregon Short Line Railway Company, a corporation, and Louis P. Delsole, for the recovery of damages alleged by him to have been sustained from the asserted delivery to the carrier at Juntura, Oregon, of 197 head of cattle at about 8 o'clock on the morning of September 16, 1915, and the carrier's failure to transport them from Juntura on the defendant's regular train, which it is averred left there after the stock had been delivered to the carrier. The allegation of the complaint in that respect is in substance that at about 8 o'clock A. M. on the above-named date the plaintiff delivered to the defendants, and they received and accepted from him, the said cattle to be by the defendant Oregon Short Line Railway Company transported from Juntura to Hope, in Malheur County, Oregon, within a reasonable time, which is from 2 to 5 hours. It is thereupon alleged that the carrier failed to transport the cattle within a reasonable time, but that they were held in the company's pens at Juntura until the following morning, when they went forward on the regular morning train, that by reason of such failure to carry and deliver said cattle and to care for them they were reduced in flesh, weakened and made unfit for market, to plaintiff's damage in the sum of $1,500.

The railway company denied that the cattle were delivered at 8 o'clock A. M. on September 16, 1915, or before the morning of September 17th, when 7 car