Bartley v. Doherty

357 P.2d 521, 351 P.2d 71, 225 Or. 15

• Court: Oregon Supreme Court
• Decided: November 23, 1960
• Status: Published

Opinions

SLOAN, J.

Plaintiff-respondent has moved to dismiss this appeal. Plaintiff challenges the sufficiency of the service of the notice of appeal on plaintiff. The determination of the motion requires the interpretation of the statutes specifying the manner in which the notice shall be served. The question is one of importance to the profession.

It is known, of course, that the 1959 legislative assembly made material changes in the statutes regulating appeals. Prior to January 1, 1960, the effective date of the amendment to the statute in question, the statute which governed the service of the notice of appeal was OES 19.030. It provided that the notice of appeal should be “served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney # # The amended statute, which is now designated OES 19.023 provides:

“19.023. How appeal taken. (1) An appeal to the Supreme Court shall be taken in the manner prescribed in OES 19.023 to 19.190.

“(2) A party to a judgment desiring to appeal therefrom, or some specified part thereof, shall cause a notice, signed by himself or his attorney, to be served on such adverse party or parties as have appeared in the action, suit or proceeding and file the original, with proof of service indorsed thereon or affixed thereto, with the clerk.”

The omission from the new section of the words “or upon his or their attorney” provides the basis for the motion to dismiss the appeal in this case. The notice of appeal was served only on plaintiff’s attorney. Plaintiff contends that the statute now requires that the notice be served on the actual party.

Plaintiff acknowledges the existence of OES 16.770 and 16.800. Section 16.770 provides that:

“16.770. Notices to be in writing; service of notices and papers. Notices shall be in writing, and notices and other papers shall be served on the party or attorney in the manner prescribed in ORS 16.780 to 16.800, where not otherwise provided by statute.”

Section 16.800 makes provision for service upon a party absent from the state and also provides:

“* * * When a party, whether absent or not from the state, has an attorney in the action or suit, service of notice or other papers shall be made upon the attorney if the address of his office is known.

Plaintiff argues, however, that neither ORS 16.770 or 16.800 apply by reason of the limitations contained in ORS 19.104. That section reads:

“19.104. Service of papers. Except as otherwise provided in ORS 19.023 to 19.190, where ORS 19.023 and 19.190 require any paper to be served and filed, the paper shall be served in the manner provided in ORS 16.780 to 16.800 on all other parties who have appeared in the action, suit or proceeding and who are not represented by the same counsel as the party serving_ the paper, and shall be filed, with proof of service indorsed thereon, with the trial court clerk. [1959 c. 558 § 27]”

It is plaintiff’s theory that the language “Except as otherwise provided in ORS 19.023 to 19.190, where ORS 19.023 to 19.190 require any paper to be served and filed, the paper shall be served in the manner provided in ORS 16.780 to 16.800 on all other parties who have appeared in the action, * * of ORS 19.104 requires any paper or notice to be served in the manner specified in ORS 19.023 to 19.190 and not otherwise. In other words, plaintiff says we may not look to ORS 16.770 or 16.800 as establishing a manner or method of service but are required to permit notices to be served only as provided by the appeal sections, ORS 19.023 to 19.190. Plaintiff reads the word “Except” as applying to the manner of service rather than who must he served.

Plaintiff misconstrues the intent of ORS 19.104 above quoted. That section is not concerned with the manner of service, but as to who must be served. Notice that ORS 19.023 requires the notice of appeal to be served only on the adverse party or parties and not every party who may have appeared in the case. The same is true of the undertaking on appeal. ORS 19.038. The undertaking, also, is served only on the adverse party or parties. The other papers that may be required on appeal are required by ORS 19.104 to be served on all other parties, adverse or otherwise, except those represented by the same counsel.

It is our conclusion that ORS 16.770 and 16.800 permit the notice of appeal to be served upon the attorney of a party. Motion denied.