Vandermeer v. Pacific Northwest Development Corp.

Oregon Supreme Court

Vandermeer v. Pacific Northwest Development Corp.

545 P.2d 868, 274 Or. 221, 1976 Ore. LEXIS 864

CourtOregon Supreme Court

DecidedFebruary 12, 1976

StatusPublished

Cited by15 cases

This text of 545 P.2d 868 (Vandermeer v. Pacific Northwest Development Corp.) 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

Vandermeer v. Pacific Northwest Development Corp., 545 P.2d 868, 274 Or. 221, 1976 Ore. LEXIS 864 (Or. 1976).

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Opinions

[223]*223HOLMAN, J.

This is an action for false imprisonment. Plaintiff received a judgment for general, special and punitive damages which was entered pursuant to a jury verdict. Defendant appeals.

The first issue is whether defendant’s appeal was perfected within the time permitted by statute. Plaintiff contends defendant’s motion for a judgment notwithstanding the verdict was not timely filed and, therefore, the motion did not delay the running of the 30 days within which to file a notice of appeal.¹ Within the ten days allowed in which to file a motion for a new trial, the trial court entered an order extending the time within which to file such a motion to October 22, 1974.² The trial judge found as facts that the motion for a new trial was mailed by defendant’s attorney to the trial judge on October 21 with a request that it be filed; that the motion was received by the trial judge on October 22 and on that date delivered by him to his secretary-bailiff, who is also a deputy county clerk, with the request that it be set for hearing; and that the deputy clerk did not physically file the motion in the county clerk’s office.³

From these facts the trial judge concluded that his delivery of the motion to the deputy clerk constituted [224]*224filing in accordance with the requirements of the law and, therefore, the motion had been filed within the time allowed by the court. It is our opinion that there was sufficient evidence to justify the factual findings made by the trial court as well as a sufficient basis for its legal conclusion that the delivery of the motion by the judge to the deputy clerk constituted a filing of the motion. In Charco, Inc. v. Cohn, 242 Or 566, 569, 411 P2d 264 (1966), we held that the delivery by a judge of an order to a deputy clerk for filing was in legal effect a filing of the document without regard to whether it was physically filed. In the present case when the judge delivered the motion to the deputy clerk, he told her to set it down for hearing and said nothing about filing it. However, we do not believe this distinction should change the result since a motion should be filed prior to hearing (as any deputy clerk should know), and a request for filing is implied anytime a document is delivered by a judge to a deputy clerk to be set for hearing.

It is also contended the trial court was without authority to hear the motion because defendant did not comply with the rules of court adopted for the Fourth Judicial District. These rules require that, in addition to filing the motion, a copy of it be served upon the trial judge and opposing counsel and such service be endorsed on the motion. Service was made upon opposing counsel by mail and endorsed upon the motion. However, the motion, rather than a copy thereof, was mailed to the judge. No copy was included nor was there any endorsement of service on the judge upon the motion. The trial court reasoned that no injury resulted to plaintiff due to the technical noncompliance with the rule and held that the defect would not deprive the court from ruling on the motion under such circumstances.

Plaintiff quotes language from Coyote G. & S. M. Co. v. Ruble, et al., 9 Or 121 (1881) to the effect that court rules have the force of law and the trial judge does not have the discretion to dispense with rules pro[225]*225mulgated by the local courts. Assuming that such rules have the force of law, it does not follow that non-compliance with each technical aspect of a rule is fatal where the purpose of the rule has been substantially fulfilled.

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[223]*223HOLMAN, J.

This is an action for false imprisonment. Plaintiff received a judgment for general, special and punitive damages which was entered pursuant to a jury verdict. Defendant appeals.

The first issue is whether defendant’s appeal was perfected within the time permitted by statute. Plaintiff contends defendant’s motion for a judgment notwithstanding the verdict was not timely filed and, therefore, the motion did not delay the running of the 30 days within which to file a notice of appeal.¹ Within the ten days allowed in which to file a motion for a new trial, the trial court entered an order extending the time within which to file such a motion to October 22, 1974.² The trial judge found as facts that the motion for a new trial was mailed by defendant’s attorney to the trial judge on October 21 with a request that it be filed; that the motion was received by the trial judge on October 22 and on that date delivered by him to his secretary-bailiff, who is also a deputy county clerk, with the request that it be set for hearing; and that the deputy clerk did not physically file the motion in the county clerk’s office.³

From these facts the trial judge concluded that his delivery of the motion to the deputy clerk constituted [224]*224filing in accordance with the requirements of the law and, therefore, the motion had been filed within the time allowed by the court. It is our opinion that there was sufficient evidence to justify the factual findings made by the trial court as well as a sufficient basis for its legal conclusion that the delivery of the motion by the judge to the deputy clerk constituted a filing of the motion. In Charco, Inc. v. Cohn, 242 Or 566, 569, 411 P2d 264 (1966), we held that the delivery by a judge of an order to a deputy clerk for filing was in legal effect a filing of the document without regard to whether it was physically filed. In the present case when the judge delivered the motion to the deputy clerk, he told her to set it down for hearing and said nothing about filing it. However, we do not believe this distinction should change the result since a motion should be filed prior to hearing (as any deputy clerk should know), and a request for filing is implied anytime a document is delivered by a judge to a deputy clerk to be set for hearing.

It is also contended the trial court was without authority to hear the motion because defendant did not comply with the rules of court adopted for the Fourth Judicial District. These rules require that, in addition to filing the motion, a copy of it be served upon the trial judge and opposing counsel and such service be endorsed on the motion. Service was made upon opposing counsel by mail and endorsed upon the motion. However, the motion, rather than a copy thereof, was mailed to the judge. No copy was included nor was there any endorsement of service on the judge upon the motion. The trial court reasoned that no injury resulted to plaintiff due to the technical noncompliance with the rule and held that the defect would not deprive the court from ruling on the motion under such circumstances.

Plaintiff quotes language from Coyote G. & S. M. Co. v. Ruble, et al., 9 Or 121 (1881) to the effect that court rules have the force of law and the trial judge does not have the discretion to dispense with rules pro[225]*225mulgated by the local courts. Assuming that such rules have the force of law, it does not follow that non-compliance with each technical aspect of a rule is fatal where the purpose of the rule has been substantially fulfilled.

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545 P.2d 868, 274 Or. 221, 1976 Ore. LEXIS 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vandermeer-v-pacific-northwest-development-corp-or-1976.

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