Hayes v. Cummings

236 P. 756, 235 P. 304, 115 Or. 13, 1925 Ore. LEXIS 51

• Court: Oregon Supreme Court
• Decided: May 4, 1925
• Status: Published

Opinions

PER CURIAM.

The plaintiff and respondent has filed at Salem a motion “for an order that the appeal in the above-entitled cause be heard before the court at Salem instead of at Pendleton at which place the record is now filed.” The appeal here involved is from the Circuit Court for Deschutes County. Section 3052, Or. L., reads thus:

“The transcripts in all appeals taken from any circuit court in any county lying east of the Cascade mountains, except Wasco, Crook, Sherman, Klamath, and Lake, shall be forwarded to the clerk of said supreme court at Pendleton, and said causes shall be heard and determined there, unless otherwise stipulated between the parties or ordered by the court. The transcripts in all appeals taken from Wasco, Crook, or Sherman counties, unless otherwise stipulated by the parties, shall be forwarded to the next succeeding term of said supreme court after the appeal shall be perfected, and if said next succeeding term after the perfection of said appeal shall be held at Salem, then the cause shall go to that place for hearing and decision, and the transcript shall be forwarded there by the first day of said term of court, as aforesaid; but in case the next succeeding term of the supreme court after such appeal shall be perfected shall be held at Pendleton, then said cause shall be heard and determined at Pendleton, and such transcript shall be forwarded by the first day of said term at Pendleton, and appeals taken from the circuit courts in all other parts of the state shall be heard and determined at the capital, as now provided by law, unless otherwise stipulated between the parties or ordered by the court.”

This statute was enacted in 1891 before the formation of Deschutes County, which was accomplished by Chapter 41 of the Laws of 1917.

The rule established by the section quoted carries all appeals from any Circuit Court in any county lying east of the Cascade Mountains to Pendleton for hearing. The exception to the rule requires appeals from the Circuit Courts of Wasco, Crook, Sherman, Klamath and Lake Counties to be heard at Salem. Manifestly the enactment does not constitute an irrefragable “covenant running with the land” then included in the boundaries of Crook County. Legislation creating new counties, without anything further being said respecting procedure on appeal, takes the territory in the new county out of the exception and puts it at large under the rule, including it in the designation “any county lying east of the Cascade Mountains.” The appeal is properly cognizable at Pendleton. The motion to transfer the record to Salem is denied.

For appellant there was a brief and oral argument by Mr. B. B. Parson». For respondent there was a brief over the name of Mr. Boss Farnham.