Allen v. Hall

874 P.2d 105, 127 Or. App. 747, 1994 Ore. App. LEXIS 683

• Court: Court of Appeals of Oregon
• Decided: May 4, 1994
• Docket: 92C-11667; CA A79000
• Status: Published

Opinion

PER CURIAM

Appellant is an inmate in the Oregon State Penitentiary. He filed this civil action pro se, and the trial court granted defendants’ motion for summary judgment. The judgment was entered on January 24,1993.

Appellant prepared a notice of appeal from that judgment and delivered it to the designated person at the OSP on February 17, 1993, within the time provided by ORS 19.026,¹ for filing with the Court of Appeals. For reasons unknown, it was not delivered to the State Court Administrator as required by ORS 19.033(2).² When appellant learned that, he filed a new notice of appeal more than 30 days from the date of the judgment, along with a motion for leave to file a late appeal. We denied that motion and dismissed the appeal.

Appellant then filed this petition for review, which we treat as a petition for reconsideration under former ORAP 9.15(6).

For the reasons stated in Hickey v. OSP, 127 Or App 727, 874 P2d 102 (1994), we vacate the order dismissing the appeal and grant appellant’s motion to file the late notice of appeal.

Reconsideration allowed; order dismissing appeal vacated; motion to file late notice of appeal within 30 days granted.

1 ORS 19.026(1) provides:

“Except as provided in subsections (2) and (3) of this section, the notice of appeal shall be served and filed within 30 days after the judgment appealed from is entered in the register.”

2 ORS 19.033(2) provides:

“(2) The following requirements of ORS 19.023, 19.026 and 19.029 are jurisdictional and may not be waived or extended:

“(a) Service of the notice of appeal on all parties identified in the notice of appeal as adverse parties or, if the notice of appeal does not identify adverse parties, on all parties who have appeared in the action, suit or proceeding, as provided in ORS 19.023(2)(a), within the time limits prescribed by ORS 19.026.

“(b) Filing of the original of the notice of appeal with the Court of Appeals as provided in ORS 19.023(3), within the time limits prescribed by ORS 19.026.”