Oliver v. Harvey

5 Or. 360

• Court: Oregon Supreme Court
• Decided: December 15, 1874
• Status: Published

Opinion

By the Court,

Prim, J.:

Tbe notice of appeal, as bas often been decided by tbis Court, should describe tbe judgment appealed from witb sufficient certainty to enable all tbe parties interested in tbe matter to know definitely what judgment is appealed from. Tbe judgment in tbis notice is described as having been rendered in tbe Circuit Court of “said county.” No county bad been mentioned and previously referred to, and from tbe caption it could only be gathered that tbe paper referred to some proceeding in tbe Supreme Court. We think it too indefinite, and cannot extend tbe jurisdiction of tbis Court over tbe respondent.

It was argued by counsel that tbe general appearance and stipulation mentioned in tbe statement gave tbis Court jurisdiction, notwithstanding tbe defect in tbe notice of appeal. To tbis proposition we cannot assent. By tbe Code, § 525, “a judgment or decree may be reviewed as prescribed in tbis title, and not otherwise.”

Section 527 provides that “an appeal shall be taken and perfected in tbe manner prescribed in tbis section, and not otherwise. Tbe appellant shall cause a notice to be served on tbe adverse party, and file tbe original witb proof of service indorsed thereon witb tbe clerk where tbe judgment or decree is entered.” Tbis is tbe only mode prescribed in which an appeal can be taken to tbe Supreme Court. Tbe service and filing tbe notice of appeal is indispensable in order to enable tbe appellate court to obtain jurisdiction of tbe cause. A waiver of tbe filing by tbe stipulation of tbe parties is not tbe equivalent of tbe filing of tbe notice; for consent, though it may waive error, cannot confer jurisdiction.

Tbis view is fully sustained in Bonds v. Hickman (29 Cal. 460). That was a case where tbe parties undertook by stipulation to waive tbe filing and service of tbe notice under a statute exactly like ours. We are therefore of opinion that the motion should be granted.

Appeal dismissed.