Thompson v. City of St. Helens

709 P.2d 748, 76 Or. App. 440
Court of Appeals of Oregon·Decided November 20, 1985·No. 30001, 30034; CA A32162·Published·Cited by 1 cases

Opinions

WARREN, J.

On May 4,1983, the city council of St. Helens, acting at an evening meeting, passed an ordinance vacating a street. The ordinance was effective immediately and was “filed for record” in the deed records of Columbia County on May 5, 1983, pursuant to ORS 271.150.1 Plaintiffs, who had opposed the ordinance, filed a notice of appeal with the circuit court on June 6, 1983. The court dismissed that appeal as not timely filed, and this appeal followed.

Appeals from street vacation ordinances are governed by ORS 271.130(4):

“Any property owner affected by the order of vacation or the order awarding damages or benefits in such vacation proceedings may appeal to the circuit court of the county where such city is situated in the manner provided by the city charter. If the charter does not provide for such appeal, the appeal shall be taken within the time and in substantially the manner provided for taking an appeal from justice or district court in civil cases.”'

The city charter does not provide for the manner of taking appeals. Under ORS 271.130(4), if a city charter does not otherwise direct, an appeal from an order vacating a street “shall be taken within the time and in substantially the manner provided for taking an appeal from justice or district court in civil cases.” We must first determine how the law requires a party to take an appeal in civil cases in justice and district courts and then analogize those proceedings to the passage of an ordinance to determine how an appeal may be taken in “substantially the [same] manner.”

ORS 53.020 and 53.030 govern the manner and time in which a party must appeal from a judgment of a justice court. ORS 53.020 provides, in pertinent part:

“An appeal is taken to the circuit court of the county wherein the judgment is given, and may be taken in open [443] court at the time the judgment appealed from is given, or within 30 days from the date of the entry thereof. * * *”

ORS 53.030 provides:

“An appeal is taken by serving, within 30 days after rendition of judgment, a written notice thereof on the adverse party, or his attorney, and filing the original with the proof of service indorsed thereon with the justice, and by giving the undertaking for the costs and disbursements on the appeal, as provided in ORS 53.040. A written acknowledgment of service by the respondent or his attorney, indorsed on the notice of appeal, shall be sufficient proof of service. When the notice of appeal has been served and filed, the appellate court shall have jurisdiction of the cause.”

ORS 53.020 and 53.030 appear to be inconsistent, because ORS 53.020 provides that an appeal may be taken “within 30 days from the date of the entry” of the judgment, whereas ORS 53.030 provides that an appeal be taken “within 30 days after rendition of judgment.” (Emphasis supplied.) In Furlong v. Tish, 189 Or 86, 92, 218 P2d 476 (1950), the court construed, and harmonized, statutory language substantially similar to ORS 53.020 and 53.030 to provide that written notice of appeal to the circuit court may be given within 30 days of the entry of judgment, and not 30 days from the rendition of judgment in open court, and gave no effect to the term “rendition.” In effect, the court said that “rendition” means “entry.”

ORS 271.130(4) also refers to the taking of an appeal from district court cases. ORS 46.250(3) provides that an appeal from a civil case in district court shall be taken “within 30 days after the entry of the judgment or decree.” (Emphasis supplied.) Thus, the law provides that appeals from both justice and district'courts be taken within 30 days after the entry of judgment and not 30 days after its rendition.

The issue in this case is whether the 30-day period within which to take an appeal from a street vacation ordinance commences at the time the ordinance is passed and becomes final or, as plaintiffs contend, at the time it is “filed for record” pursuant to ORS 271.150. If the period began on May 4,1983, when the ordinance became final, the appeal was not timely; if it began on May 5,1983, when the ordinance was filed with the county clerk, the appeal was timely. The [444] question is what stage in the enactment of a street vacation ordinance is most analogous to the entry of judgment in a civil case.

We conclude that filing for record is most analogous to entry and that time to appeal from a vacation order does not begin to run until that order is “filed for record” with the county clerk, as required by ORS 271.150. As the dissent notes, the ordinance is not readily available to the public and to affected persons until that filing occurs. ORS 271.150 is designed to give notice to persons interested in the property affected by the street vacation and the appeal period should not begin to run until the ordinance is filed for record so that affected persons may learn about it. Were this not the rule, a city council could adopt an ordinance and delay filing it for 30 days; in that case, the ordinance would not be readily available to the public until the appeal period had expired. See Blackledge v. Harrington, 289 Or 139, 611 P2d 292 (1980).

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Thompson v. City of St. Helens, 709 P.2d 748, 76 Or. App. 440 (Or. Ct. App. 1985).

709 P.2d 748 (Thompson v. City of St. Helens) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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