State v. Bemrose

Oregon Supreme Court

State v. Bemrose

185 P. 765, 94 Or. 305

DecidedNovember 13, 1919

StatusPublished

This text of 185 P. 765 (State v. Bemrose) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bemrose, 185 P. 765, 94 Or. 305 (Or. 1919).

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Opinion

McBRIDE, C. J.

This is a motion to dismiss an appeal.

1. There was a proceeding to oust the defendant from the office of school director of District No. 27, Lincoln County, and a decree adjudging that he was not elected to said office and declaring the same vacant. No written notice of appeal was ever served and there is no record, in the journal of the court that any notice of appeal was given in open court. The undertaking on appeal recites that notice was given in open court but as before stated, the journal is silent on that subject.

Section 550, L. O. L., as amended by Section 1, Chapter 319, Gen. Laws of 1913, provides that when notice of the appeal is given in open court, “such notice shall thereupon, by order of the court or judge thereof, be entered in the journal of the court.”

2. This entry constitutes the only proof admissible of the giving of such notice, and is equivalent to the proof or return made upon a written notice served in [307]*307the -usual manner. The object of the requirement is to secure certainty as to the giving of the notice and to have proof of it made a matter of record at the time instead of leaving the matter to the uncertain memory of the parties. An appeal, being a statutory right, the method prescribed by statute must be strictly pursued: Donart v. Stewart, 63 Or. 76 (126 Pac. 608); Lewis v. Chamberlain, 61 Or. 150 (121 Pac. 430); Baskin v. Marion County, 70 Or. 363 (141 Pac. 1014), and cases there cited.

It follows that the appeal must be dismissed, and it is so ordered. Appeal Dismissed.

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McBRIDE, C. J.

This is a motion to dismiss an appeal.

1. There was a proceeding to oust the defendant from the office of school director of District No. 27, Lincoln County, and a decree adjudging that he was not elected to said office and declaring the same vacant. No written notice of appeal was ever served and there is no record, in the journal of the court that any notice of appeal was given in open court. The undertaking on appeal recites that notice was given in open court but as before stated, the journal is silent on that subject.

Section 550, L. O. L., as amended by Section 1, Chapter 319, Gen. Laws of 1913, provides that when notice of the appeal is given in open court, “such notice shall thereupon, by order of the court or judge thereof, be entered in the journal of the court.”

2. This entry constitutes the only proof admissible of the giving of such notice, and is equivalent to the proof or return made upon a written notice served in [307]*307the -usual manner. The object of the requirement is to secure certainty as to the giving of the notice and to have proof of it made a matter of record at the time instead of leaving the matter to the uncertain memory of the parties. An appeal, being a statutory right, the method prescribed by statute must be strictly pursued: Donart v. Stewart, 63 Or. 76 (126 Pac. 608); Lewis v. Chamberlain, 61 Or. 150 (121 Pac. 430); Baskin v. Marion County, 70 Or. 363 (141 Pac. 1014), and cases there cited.

It follows that the appeal must be dismissed, and it is so ordered. Appeal Dismissed.

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Bluebook (online)

185 P. 765, 94 Or. 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bemrose-or-1919.

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