Keeley v. Keeley

192 P. 490, 97 Or. 596, 1920 Ore. LEXIS 269

• Court: Oregon Supreme Court
• Decided: September 28, 1920
• Status: Published

Opinion

BENSON, J.

This, being a proceeding in equity, is before us for a trial de novo, upon the record as it is presented to us. The husband is the plaintiff. The wife made no appearance. The district attorney filed no pleading of any sort, but appeared personally at the trial. The plaintiff was there represented by Will H. Bard as his attorney. The only proof of service of the notice of appeal is the affidavit of the plaintiff, and is in the following form:

“I, Lee Boy E. Keeley, being duly sworn, depose and say: That I am plaintiff and attorney for plaintiff in the above entitled cause; that on the 21st day of July, 1920, I served a true and correct copy of the foregoing notice of appeal, duly certified as such, upon J. J. Barrett, district attorney for Clatsop County, by mailing a copy to him, with postage prepaid, properly addressed. ,

“(Signed) Lee Boy E. Keeley.

“Subscribed and sworn to before me this 21st day of July, 1920.

“(Signed) Will H. Bard,

“Notary Public for Oregon.”

1. It will be observed that this affidavit is wholly inadequate as a proof of service. It gives the court no information as to where the district attorney then resided, or at what postoffice the same was mailed, or as to whether or not the facts were such as to permit a service by mail.

2. A more serious defect arises from the fact that the attempted proof of service is made by one who is a party to the action, a course that is expressly prohibited by Section 539, L. O. L. This section has been clearly construed in the cases of Williams v. Schmidt, 14 Or. 470 (13 Pac. 305); Muckle v. Columbia County, 56 Or. 146 (108 Pac. 120).

3. It is equally well established that the proper service of a notice of appeal is jurisdictional: Everding & Farrell v. Gebhardt Lumber Co., 90 Or. 207 (175 Pac. 611, 176 Pac. 186).

4. The district attorney has made no appearance in this court, and we cannot know whether or not he has any knowledge of this attempted appeal. We are therefore compelled to a consideration of the case without the assistance which might otherwise have been rendered by him. We next are presented with this question: "Was the district attorney, in this case, an adverse party in the sense that it was necessary for the appellant to serve a notice of appeal upon him in order to give this court jurisdiction of the appeal? So far as we have been able to discover, the question has never before been presented. It is true, that in two cases, De Foe v. De Foe, 88 Or. 549 (169 Pac. 128, 172 Pac. 980), and Parman v. Parman, 95 Or. 307 (180 Pac. 906, 185 Pac. 922), it has been held that in a case where the marriage defendant appears and contests the suit, in good faith, and the district attorney has not filed any pleading, the state is not an adverse party in the sense that the district attorney must necessarily be served with the notice of appeal. This conclusion is not inconsistent with the provisions of Section 1020, L. O. L., as amended by chapter 86, Glen. Laws 1911, p. 126, an important - clause of which reads thus:

“It shall he the duty of such district attorney, so far as may he necessary to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend against the same in good faith, to make a defense therein on behalf of the state. ’ ’

5. It will therefore he observed that in every suit for divorce in which the marriage defendant makes default, it is the imperative duty of the district attorney to make a defense. Indeed, he is the only adverse party upon whom, in such a ease, the service of notice can he made.

The right of appeal is a strictly statutory right, and the requirements of the statute must be strictly followed. Section 550, L. O. L., begins thus:

“An appeal shall be taken and perfected in the manner prescribed in this section, and not otherwise. ’ ’

The service and filing of a notice of appeal is the very first step therein, and, if there be no one npon whom such service may legally be had, then there can be no ''appeal.

We conclude therefore that, since there is no sufficient service of a notice of appeal, this court has no jurisdiction of the cause, and the appeal is therefore dismissed.

Appeal Dismissed. Rehearing Denied.