Lee v. Gram

196 P. 373, 105 Or. 49

• Court: Oregon Supreme Court
• Decided: January 26, 1922
• Status: Published

Opinions

BURNETT, C. J.

The plaintiff, having been cast in judgment by the Circuit Court of Multnomah County, gave notice of appeal in the following form:

“In the Circuit Court of the State of Oregon for Multnomah County.

No. H — 2577.

“Mary Y. Lee,

v.

“Plaintiff,

“Mary L. Gram, Executrix of the Estate of George L. Colwell, Deceased,

“Defendant.

“Notice oe Appeal.

“To the Above-named Defendant, Mary L. Gram, Executrix of Estate of Geo. L. Colwell, Deceased, and E. E. Miller and Harry G. Hoy, Her Attorneys :

“You and each of you are hereby notified that the above-named plaintiff, Mary Y. Lee, appeals to the Supreme Court of the State of Oregon, from the judgment rendered and entered against her in the above-entitled court and cause on the 28th day of November, 1920, by sustaining the defendant’s demurrer to her complaint and dismissing the same and rendering judgment against her for costs and disbursements.

“Bradley A. Ewers and

“Louis E. Schmitt,

“Attorneys for Plaintiff and Appellant.”

The plaintiff also gave an undertaking on appeal conditioned that she would pay the costs, damages and disbursements which might be awarded against her on appeal, in which undertaking she referred to the judgment as having been given “on or about the twenty-eighth day of November, 1920.” Service of the notice of appeal and of the undertaking was accepted by the attorneys for the defendant, December 14, 1920, and on the same day both documents were filed in the Circuit Court. The transcript filed in this court shows that the judgment which the plaintiff would review was rendered October 28, 1920, instead of November 28th, as stated in the notice of appeal. On this state of the record the defendant moved to dismiss the appeal. The plaintiff moved in this court for an order permitting her to amend her notice of appeal and undertaking, substantially by striking out “November” where the same appears in each document and inserting instead thereof, “October.” This motion is supported by an affidavit of one of the attorneys for plaintiff, to the effect that the difference in dates was a mere clerical error on the part of the stenographer in his office in transcribing her shorthand notes, which he did not observe before filing the papers. It is said in Catlin v. Jones, 56 Or. 492 (108 Pac. 633):

“The giving of proper notice by a party is made by statute a condition precedent to the court’s exercise of power to permit a corrective addition, which is limited to the giving of an undertaking, and then only when the party has acted in good faith.”

1, 2. It is said in Section 548, Or. L.:

“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise.”

The conditions established by that legislation include the service of the notice of appeal, the giving of an undertaking (Section 550, Or. L.); and the filing of a transcript (Section 554). As the Supreme Court is a court of limited jurisdiction, a party desiring to appeal must at his peril frame the papers necessary to his appeal as required by the statute; for “not otherwise,” in the language of Section 548, can this court acquire authority to decide the questions involved in an appeal. The party appealing must himself without aid from this court supply the documents necessary to his appeal. Being without jurisdiction until he does so, we cannot reach out an aiding hand and help him into court. It follows, therefore, that we cannot give permission to the plaintiff here to amend her notice of appeal, for the reason that such action' is beyond our power. The plaintiff’s motion to amend the notice and the undertaking must therefore he overruled.

3. While the principle governing appeals is thus strict, nevertheless the decisions of the courts and the legislation affecting the question have been most liberal in practice. Early cases in considerable numbers have dismissed appeals because of defects in the description of the judgment from which the appeal was taken. However, by the act of February 22, 1899 (Laws 1899, p. 227), the legislature codified the matter, and in what now appears as Section 550, Or. L., declared respecting the notice of appeal that—

“Such notice shall be sufficient if it contains the title of the cause, the names of the parties and notifies the adverse party or his attorney that an appeal is taken to the Supreme or Circuit Court, as the case may be, from the judgment, order or decree, or some specified part thereof.”

This is the exclusive standard by which the sufficiency of a notice of appeal is to be determined. We may neither add to nor detract therefrom. If we find these ingredients in the paper in question, by force of the statute we are bound to sustain it. Under the authority of Summers v. Geer, 50 Or. 249 (85 Pac. 513, 93 Pac. 133), we may reject as surplus-age all other matter. In that case words referring to the volume and page of the “judgment docket” instead of the Circuit Court journal as the place of record of the judgment, together with other language indicating uncertainty as to the judgment appealed from, were rejected as surplusage and the motion to dismiss the appeal was overruled for the reason that enough remained in the notice as thus rectified to satisfy the terms of Section 550, Or. L., as to the sufficiency of the notice.

Such cases as Crawford v. Wist, 26 Or. 596 (39 Pac. 218); Duffy v. McMahon, 30 Or. 306 (47 Pac. 787), and Hamilton v. Butler, 33 Or. 370 (54 Pac. 200), wherein the appeals were dismissed because of defective description of the judgment in the notice of appeal, were all decided before the passage of the act of February 22, 1899, now embodied in Section 550, Or. L. Under the present statute the only indicia required by law to identify the judgment are the title of the cause, the names of the parties, and notification to the adverse party or his attorney that an appeal is taken to the Supreme or Circuit Court, as the case may be, from the judgment, order, or decree. It is not for us to require more or to demand less.

4. We are not unmindful that an appeal must be taken within sixty days from the entry of the judgment, order or decree appealed from: Section 550, subd. 5, Or. L. Of course, baying appealed, it becomes tbe duty of tbe party appealing, under Section 554, Or. L.., to file a transcript, ‘ ‘ and after compliance with tbe provisions hereof tbe appellate court shall have jurisdiction of tbe cause, but not otherwise.” It is necessary for tbe appellant to lodge in this court a transcript showing an appealable judgment rendered within tbe time allowed for taking an appeal. If tbe defect as to time or nature of tbe determination appealed from becomes thus apparent, a motion to dismiss tbe appeal will be allowed. Owing to tbe several amendments of tbe statute and tbe varying circumstances upon which tbe different cases depended, tbe decisions have not been uniform in this court, and in some instances they are in apparent contradiction. For example, in Salem Traction Co. v. Anson, 41 Or. 562 (67 Pac. 1015, 69 Pac. 675), tbe decree was rendered on June 8th. Tbe notice of appeal recited that it was rendered on June 18th and referred to the book and page of tbe record of the decree. The undertaking on appeal described tbe decree as dated June 8th. The court there held that it was manifest from tbe transcript, tbe undertaking on appeal, and tbe notice itself that it was merely a clerical error which could not have misled tbe respondent, and hence overruled .the motion to dismiss. Tbe court cited as a precedent justifying its ruling Moorhouse v. Donica, 13 Or. 435 (11 Pac. 71), where giving tbe wrong date of judgment in tbe notice of appeal was held not to vitiate tbe appeal. Tbe decision was also aided by tbe principle that tbe undertaking on appeal may be examined in order to identify tbe judgment or decree sought to be reviewed: Keady v. United Rys. Co., 57 Or. 325 (100 Pac. 658, 108 Pac. 197); McMahon v. Hull, 63 Or. (119 Pac. 348, 124 Pac. 474, 126 Pac. 3); Holton v. Holton, 64 Or. 290 (129 Pac. 532, 46 L. R. A. (N. S.) 779; Meridianal Co. v. Bourne, 87 Or. 324 (160 Pac. 1151, 170 Pac. 521). In Rohrbacher v. Strain, 95 Or. 1 (177 Pac. 990, 186 Pac. 583), the appellant gave a notice of appeal in which the date of the decree was wrongly stated. Based npon that notice, -he gave an undertaking on appeal, and, the time for exception to the sureties having elapsed, the appeal apparently was perfected. Having discovered his error of date, however, he took no further proceedings under that notice, but gave another, correctly describing the decree as to its date, accompanied by a new undertaking, and filed a transcript in this court. A motion to dismiss the second appeal was made, on the ground that the appellant had taken one appeal and abandoned it, and consequently could not appeal again. But, pursuing the liberal policies of decisions and legislation making it easier to enter the appellate court, Mr. Chief Justice McBride held that the motion to dismiss should be overruled, saying that:

“Had the appellant stood npon his first attempted appeal, it would have been dismissed here for want of jurisdiction.”

On principle this was an erroneous view of the law; for it held in effect that more must be put into the notice of appeal than the law requires and that the incorrect date nullified the other elements of the notice, which the statute declares are alone essential. A case on the other extreme is Lecher v. St. Johns, 74 Or. 558 (146 Pac. 87), where in construing the notice of appeal Mr. Chief Justice Moore, writing the opinion, ignored the title of the cause and the names of the parties, although made elements of sufficiency by the statute, and rested his estimate of the document solely on the body thereof. On that basis he concluded that the notice “does not state the^ judgment undertaken to be reviewed was given in any particular action.” The statute in its present condition has made the formula for notice of appeal as plain and easy as the petition of the publican who, “standing afar off, would not lift up so much as his eyes unto Heaven, but smote upon his breast, saying, ‘God be merciful to me, a sinner’ Luke xviii: 13.

5. Consequently a properly served notice containing the statutory elements of sufficiency, although cumbered with negligible surplusage, when coupled with a regular undertaking and transcript, will bring before us for examination on appeal any appealable judgment rendered in the suit or action therein entitled.

6. To sum up: As held in Keady v. United Rys. Co., 57 Or. 325 (100 Pac. 658, 108 Pac. 197):

“An inspection of a notice of appeal ought to enable the court, by fair construction or reasonable intendment, and without a resort to any other evidence than that which the transcript on appeal affords, to determine that the appeal is taken from the judgment or decree in a particular case.”

This necessarily excludes all extraneous or ancillary documents, such as affidavits and the like, in aid or amendment of the record. Further, a notice of appeal which contains all the requisite elements of sufficiency prescribed by Section 550, Or. L., is not necessarily helped or harmed by the addition of nonessential matters such as dates, numbers, or pages of the record. In view of the liberal legislation npon the subject and the equal leniency of the court in dealing with ''"this matter in the decisions of later years, we conclude that the notice here involved is sufficient according to the canon of the statute beyond the need of amendment. The motion to dismiss is overruled.

(209 Pac. 474.) For appellant there was a brief over the names of Mr. L. E. Schmitt and Mr. Bradley A. Ewers, with an oral argument by Mr. Schmitt. For respondent there was a brief over the names of Mr. Barry G. Hoy and Mr. F. E. Miller, with an oral argument by Mr. Hoy.

MotioN to Dismiss Appeal and Motion, op • Appellant to Amend Notice. Both Motions OVERRULED.

Affirmed September 26, 1922.