Smith Securities Co. v. Multnomah County

192 P. 654, 98 Or. 418, 1920 Ore. LEXIS 91

• Court: Oregon Supreme Court
• Decided: October 12, 1920
• Status: Published

Opinions

JOHNS, J.

The appeal from the decision of the board of equalization to the Circuit Court and the proceedings in that court were founded upon Section 3613, L. O. L., which provides as follows:

“Any person who shall have petitioned for the reduction of a particular assessment, or whose assessment has been increased by the board of equalization, who shall be aggrieved by the action of such board, may appeal therefrom to the Circuit Court of the county. The appeal shall be taken and perfected in the following manner, and not otherwise:

“1. The party desiring the appeal from the action of such board of equalization may cause a notice, to be signed by himself or attorney, to be filed with the county clerk of the county within five days, excluding Sunday, from the time the assessment-roll is returned to the county clerk by the board of equalization.

“2. Within five days of the giving of snch notice the appellant shall file with the clerk of the Circuit Court a transcript of the petition for reduction of assessment, or so much of the record of the board of equalization as may be necessary, intelligently to present the questions to be decided by the Circuit Court, together with a copy of the order or action taken by the board of equalization, the notice of appeal and record of the filing thereof; thereafter the Circuit Court shall have jurisdiction of the matter, but not otherwise,

“The appeal shall be heard and determined by the Circuit Court in a summary manner, and shall be determined as an equitable cause. Either the appellant or the county as appellee shall be entitled to the compulsory attendance of witnesses and to the production of books and papers. If, upon hearing, the court finds the amount at which the property was finally assessed by the board of equalization is its actual full cash value, and the assessment was made fairly and in good faith, it shall approve such assessment ; but if it finds that the assessment was made at a greater or less sum than the market value of the property, or if the same was not fairly or in good faith made, it shall set aside such assessment and determine such value, and a certified copy of the order or judgment of the Circuit Court shall be sufficient warrant for the levying and collecting of taxes against such property, and upon such valuation so determined., No proceedings for the levying or collection of taxes against any property shall be stayed by the reason of the taking or pendency of the appeal from the board of equalization; but in event the assessment is decreased by the court on appeal the tax collector shall refund to the person paying taxes on such property any excessive amount of taxes collected, and in event the assessment is increased by the court on appeal the property shall be liable for the deficiency on the amount of such increased valuation. The provisions of law governing costs and disbursements on appeal shall be applicable hereto.”

It is required that the appeal be taken and notice filed with the county clerk within five days, excluding Sunday, after the assessment-roll is filed with the county clerk by the board of equalization, and that within five days after giving the notice the appellant shall file with the clerk of the Circuit Court a transcript of the record.

1,2. This statute provides a special proceeding and is summary and complete within itself. Although it does provide for an appeal to the Circuit Court by an aggrieved property owner, it does not give either party the right to appeal to the Supreme Court. This court has many times held that an appeal is statutory, and does not exist as a matter of right. It is true that the case here was tried upon its merits, and that; no motion was filed to dismiss. But the question of jurisdiction is involved. On principle, Portland v. Nottingham, 58 Or. 1 (113 Pac. 28), is conclusive that in this kind of a case the county does not have the right of appeal. For want of jurisdiction, and appeal is dismissed. Appeal Dismissed.

McBride, C. J., and Bean and Burnett, JJ., concur.

Denied January 4, 1921.