Meyer v. Joseph

668 P.2d 1228, 295 Or. 588, 1983 Ore. LEXIS 1449

• Court: Oregon Supreme Court
• Decided: September 7, 1983
• Docket: TC A8105-02927, SC 29005
• Status: Published

Opinions

PER CURIAM

This matter is before the court as an appeal certified to this court by the Court of Appeals and accepted by this court pursuant to ORS 19.210. Apparent on the face of the record is the issue of whether there is any appellate jurisdiction in this case.

An appellate court does have jurisdiction to determine whether it has jurisdiction. The Court of Appeals was unable to address even that question because its members were named party defendants in this case. In those circumstances, we had no alternative to acceptance of certification. This court had to accept certification in order to decide whether there was appellate jurisdiction.

The record discloses that plaintiff has filed a notice of appeal from a non-appealable order. He has designated as the order from which he appeals an order of the circuit court dated June 24,1982, which provides:

“IT IS HEREBY ORDERED that the Court is not required to answer questions of the nature asked by plaintiff in his Declaratory Judgment and will not answer said questions.”

That is neither a judgment nor decree, ORS 19.010(1), nor an order described in ORS 19.010(2), which is to be treated as a judgment or decree for the purpose of being appealable. Neither is the order embraced within ORS 19.010(4) conferring appellate jurisdiction in special statutory proceedings. This appeal must be dismissed on our own motion for want of appellate jurisdiction. See, for example, Ragnone v. Portland School District No. 1J, 289 Or 339, 613 P2d 1052 (1980), for the proposition that there is no appellate jurisdiction other than that created by statute, and see, for example, Miller v. Grants Pass Irrigation, 290 Or 487, 622 P2d 729 (1981), for the proposition that the Court of Appeals has no jurisdiction over an appeal from a non-appealable order. We have treated our decision in Longee v. Carter, 283 Or 93, 582 P2d 1 (1978), as imposing a duty on an appellate court to dismiss, on its own motion, an appeal where there is a want of appellate jurisdiction. Lloyd v. Zollman, 285 Or 161, 163 fn. 1, 590 P2d 222 (1979). See, generally, J. Gregcin, Inc. v. City of Dayton, 287 Or 709, 601 P2d 1254 (1979).

The appeal is dismissed, and the case is remanded to the circuit court.