Eena Co. v. Zosel

Oregon Supreme Court

Eena Co. v. Zosel

99 P.2d 1022, 95 P.2d 428, 164 Or. 99, 1940 Ore. LEXIS 76

CourtOregon Supreme Court

DecidedFebruary 1, 1940

StatusPublished

Cited by5 cases

This text of 99 P.2d 1022 (Eena Co. v. Zosel) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eena Co. v. Zosel, 99 P.2d 1022, 95 P.2d 428, 164 Or. 99, 1940 Ore. LEXIS 76 (Or. 1940).

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Opinions

RAND, C. J.

In this suit, the appellants have twice appealed and the respondents now move to dismiss both appeals. The first was from what is now claimed to have been a decree entered on November 15,1938. The other was from a decree which was actually made and entered on June 20, 1939. The ground urged for the dismissal of the first5 appeal is that the transcript on appeal was not filed in this court within the time limited by subdivision 2 of section 7-507, Oregon Code 1930. Valid orders extending the time for filing the transcript to and including July 5, 1939, were made. A further order extending the time for the filing of the transcript was made but it was invalid because made on an ex parte application without notice and not based upon a stipulation of the parties as required by said statute. The transcript was not filed until July 15, 1939, and, it not having been filed within the time limited, the first appeal is deemed, by force of the statute, to have been abandoned and the effect thereof terminated.

*101 After the taking of said first appeal and before any action had been taken thereon by this court, the rer spondents applied to the court below for and were granted permission to file a supplemental answer. A trial upon the issue thus raised by the supplemental answer and the answers made thereto was had and a decree was entered thereon on June 20,1939, and from this decree the second appeal was taken.

It is obvious, from the fact that the respondents asked for and were granted permission to file a supplemental answer, that neither the respondents nor the court deemed that the entry made on November 15, 1938, was a final decree, and this is further strengthened by the fact that the writing so entered recites that: “the Court, having heard the evidence and now being fully advised in the premises, finds a decree should be entered herein as follows”, and then sets forth the form in which the decree should be entered, but no decree whatever was thereafter entered until the final decree was entered on June 20, 1939.

The respondents now claim that the first entry made on November 15, 1938, was a final decree and that an appeal having been taken therefrom, which was still pending and undetermined in this court at the time they filed their supplemental answer, the circuit court had lost jurisdiction and, therefore, the decree entered on June 20, 1939, was void and of no effect.

It is well settled that an appeal will lie from a void judgment. It is also well settled that an appeal lies only from a final judgment or decree or from a final order as prescribed by section 7-501, Oregon Code 1930. As a general rule, the face of a judgment or decree is the test of its finality: 2 Am. Jur. p. 864. Measured by this rule, we hold that the entry made on November 15, *102 1938, was not a final order or decree from which an appeal conld be taken and that the attempted appeal taken therefrom was a mere nullity, and that the appeal taken from the decree entered on June 20, 1939, was valid and, since the appeal so taken was perfected and the transcript filed in this court within the time limited in the Code, the appeal is a valid appeal and not subject to respondents’ motion.

For these reasons, the respondents’ motion to dismiss the appeal in the instant case is overruled.

Argued on the merits February 1; affirmed March 12, 1940

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RAND, C. J.

In this suit, the appellants have twice appealed and the respondents now move to dismiss both appeals. The first was from what is now claimed to have been a decree entered on November 15,1938. The other was from a decree which was actually made and entered on June 20, 1939. The ground urged for the dismissal of the first5 appeal is that the transcript on appeal was not filed in this court within the time limited by subdivision 2 of section 7-507, Oregon Code 1930. Valid orders extending the time for filing the transcript to and including July 5, 1939, were made. A further order extending the time for the filing of the transcript was made but it was invalid because made on an ex parte application without notice and not based upon a stipulation of the parties as required by said statute. The transcript was not filed until July 15, 1939, and, it not having been filed within the time limited, the first appeal is deemed, by force of the statute, to have been abandoned and the effect thereof terminated.

*101 After the taking of said first appeal and before any action had been taken thereon by this court, the rer spondents applied to the court below for and were granted permission to file a supplemental answer. A trial upon the issue thus raised by the supplemental answer and the answers made thereto was had and a decree was entered thereon on June 20,1939, and from this decree the second appeal was taken.

It is obvious, from the fact that the respondents asked for and were granted permission to file a supplemental answer, that neither the respondents nor the court deemed that the entry made on November 15, 1938, was a final decree, and this is further strengthened by the fact that the writing so entered recites that: “the Court, having heard the evidence and now being fully advised in the premises, finds a decree should be entered herein as follows”, and then sets forth the form in which the decree should be entered, but no decree whatever was thereafter entered until the final decree was entered on June 20, 1939.

The respondents now claim that the first entry made on November 15, 1938, was a final decree and that an appeal having been taken therefrom, which was still pending and undetermined in this court at the time they filed their supplemental answer, the circuit court had lost jurisdiction and, therefore, the decree entered on June 20, 1939, was void and of no effect.

It is well settled that an appeal will lie from a void judgment. It is also well settled that an appeal lies only from a final judgment or decree or from a final order as prescribed by section 7-501, Oregon Code 1930. As a general rule, the face of a judgment or decree is the test of its finality: 2 Am. Jur. p. 864. Measured by this rule, we hold that the entry made on November 15, *102 1938, was not a final order or decree from which an appeal conld be taken and that the attempted appeal taken therefrom was a mere nullity, and that the appeal taken from the decree entered on June 20, 1939, was valid and, since the appeal so taken was perfected and the transcript filed in this court within the time limited in the Code, the appeal is a valid appeal and not subject to respondents’ motion.

For these reasons, the respondents’ motion to dismiss the appeal in the instant case is overruled.

Argued on the merits February 1; affirmed March 12, 1940

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Bluebook (online)

99 P.2d 1022, 95 P.2d 428, 164 Or. 99, 1940 Ore. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eena-co-v-zosel-or-1940.

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