Walker v. Fireman's Fund Insurance

257 P. 701, 122 Or. 179, 1927 Ore. LEXIS 153

• Court: Oregon Supreme Court
• Decided: June 21, 1927
• Status: Published

Opinions

RAND, J.

Plaintiff, in an action at law, had judgment in the court below and defendant appealed. The case is now here on plaintiff’s motion to dismiss the appeal. The appeal was taken and perfected on August 10, 1925, and within thirty days thereafter defendant filed in this court a transcript consisting only of a certified copy of the judgment appealed from, the notice of appeal and proof of .service thereof and of the undertaking. On March 1, 1926, which was the first day of the second term next following the perfecting of the appeal, an abstract of record was filed. The bill of exceptions was not filed until June 24, 1926.

Plaintiff’s first contention is that the filing within thirty days after the perfecting of an appeal of a transcript containing a certified copy of the judgment, the notice of appeal and proof of service thereof and of the undertaking on appeal and nothing more, is not sufficient under Section 554, Or. L., to give this court jurisdiction of the cause, and that the subsequent filing of an abstract as required by and in compliance with the rules of this court will not cure the defect. If this contention is sustained, it means the dismissal of a large number of appeals now pending in this court in cases where the appellant has acted in strict compliance with the rules of this court. The contention, however, is wholly untenable and arises from a construction recently placed on said section in Sitton v. Goodwin, 119 Or. 74 (248 Pac. 163), which is directly contrary to the well-settled construction previously given to that section.

Section 554 provides that:

“Upon the appeal being perfected the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the law or the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the question to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; if the cause is one on appeal to the Supreme Court, which it is provided by law or rules of the court shall be submitted at Pendleton, the transcript and abstract shall be filed within the time and in the manner herein provided with the deputy clerk of the court at Pendleton; otherwise with the clerk of the court at Salem; and after compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise:

“1. If the appeal is from a decree and the cause is to be tried anew on the testimony, the clerk shall attach together the testimony, depositions and other papers on file in the office containing the evidence heard or offered on trial in the court below, and deliver the same to the appellant, taking therefor his receipt in duplicate, one of which receipts he shall file in his office and the other deliver to the respondent when so requested. Such evidence shall be deemed a part of the transcript or abstract and shall be filed therewith.

“2. If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned, and the effect thereof terminated, but the trial court or the judge thereof, or the Supreme Court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same; but such order shall be made within the time allowed to file transcript, and shall not extend it beyond the term of the appellate court next following the appeal.

“3. If the appeal be abandoned as provided in subdivision 2 of this section, thereupon the judgment or decree, so far as it is for the recovery of money, may, by the appellate court, be enforced against the sureties in the undertaking for a stay of proceedings, as if they were parties to such judgment or decree.”

In order to finally and definitely settle and dispose of this contention we will attempt to analyze the statute and determine what it actually means, or, in other words, what steps must be taken by the appellant “before the appellate court shall have jurisdiction of the cause.” It will first be observed that the statute authorizes the filing of either a transcript or an abstract and contains no prohibition against the filing of both and recognizes the power of this court to prescribe rules concerning the same. It also contains no definition of an abstract, thereby leaving to this court the determination of what it shall contain. It provides that the appellant shall “file with the clerk” “a transcript or such an abstract as the law or the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the question to be decided. ’ ’ The first question naturally arising is, when must the transcript or. abstract be filed? The statute directs that it must be filed within thirty days after the appeal is perfected unless “the trial court or the judge thereof, or the Supreme Court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same; but such order shall be made within the time allowed to file (the) transcript, and shall not extend it beyond the term of the appellate court next following the appeal.” The clause last quoted expressly confers upon both the trial court and this court the power to extend the time in which transcripts may be filed subject only to the two limitations expressed in the statute which are the order enlarging the time must be made within the time in which the transcript may be filed and the time shall not be extended beyond the term next following the appeal. There is, therefore, an express authority granted to this court to extend the time in which these papers may be filed subject only to the two limitations mentioned.

Now, it must be clear that what the court can do by order it can do by rule and that if it can extend the time for filing all of the papers and documents referred to in the statute, it can require that a part of them shall be filed as a transcript and the remainder in an abstract and may set one time for the filing of the transcript and another time for the filing of the abstract, provided only that the order is made within the time and that the time is not extended beyond the term next following the appeal. This is exactly what our rules do provide and what they have always provided since the statute has been in its present form.

Adverting again to the statute the only things specifically mentioned are a certified copy of the judgment or decree, the notice and proof of service and of the undertaking, and where the appellant files both a transcript and an abstract as our rules require him to do, the transcript must contain certified copies of these three records and this .has always been held to be jurisdictional. The only other thing required by the statute which the appellant must file is “so much of the record as may be necessary to intelligibly present the question to be decided,” and this is qualified by the clause “as the law or the rules of the appellate court may require.”

The question of how much of the record may be necessary to intelligibly present the question to be decided is a question for judicial determination and not a question of legislation. The expression used in the statute “as the law or the rules of the appellate court may require” evidences the intent of the legislature to leave to the court the determination of how much of the record must be filed in the appellate court, and this and the time in which it must be filed are to be ascertained from the rules of this court. There is no other way by which this can be determined than by the rules themselves, subject of course to the ultimate determination by this court of the question upon each record as it is presented here. There is, therefore, no basis for the contention that the transcript must contain everything required by the statute and that none of the essential parts can be presented in the form of an abstract.

Having settled what we think is the proper construction to be given to the statute, we will now en deavor to show that this construction is settled both by the rules of the court and by the decisions of this court, bearing in mind that when a statute has been once construed and that construction has been applied and adopted by repeated decisions, that construction is binding upon the court, even though a different construction might be placed upon the same statute were the question res integra and not foreclosed by previous decisions.

Before the 1913 amendment of this statute this court adopted Bule 1, which provides as follows:

“Transcripts on appeal in civil cases, shall consist of a page stating the title of the court, cause, names of the judge and attorneys, and a duly certified copy of the original judgment or decree, the notice of appeal, and the undertaking. If the appeal is from a decree, the transcript shall be accompanied by the original testimony, depositions, and other papers containing the evidence heard or offered on the trial, certified to by the clerk of the court below.” 56 Or. 614.

At the same time and by Buie 6 the court prescribed that “within twenty days after the transcript is filed in a civil case, the appellant shall serve upon an attorney for each respondent a printed copy of so much of the record, prepared as hereinafter provided, as may- be necessary to a full understanding of the questions presented for decision, and file with the clerk of this Court proof of such service, together with sixteen copies of said abstract, and no case shall be docketed for hearing until this and other rules are complied with, except by order of the Court,” and by Bule 11 prescribed what the abstract should contain, how errors should be assigned and required the appellant to “set out briefly and concisely, the errors relied upon for a reversal or modification of the order, judgment or decree appealed from,” thus providing for the filing of the very thing required by the statute, namely, “so much of the record as may be necessary to intelligibly present the question to be decided.” In its preface to the rules now in force it is said that:

“In brief, upon the appeal being perfected in civil cases, the appellant must:

“1. File a certified copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal. This is jurisdictional and hence indispensable;

“2. File ‘a transcript or such an abstract as the law or the rules of the appellate court may require.’ ”

The promulgation of a rule by a court declaring what a litigant must do in order to comply with the requirements of a statute is as to the matters covered by the rule, a construction of the statute, and the construction thus placed on the statute is as binding upon the court in respect to such matters, as a decision rendered in due course of litigation. The rule is intended not only as a guidance for litigants, but also as a command for them to obey. When such a rule has been continued in force for a long period of time and litigants have relied upon it, if a different construction is to be adopted it ought not to be done without first changing the rule and giving notice thereof and then only as to cases subsequently arising.

In St. Martin v. Hendershott, 82 Or. 58 (151 Pac. 706, 160 Pac. 373), the motion to dismiss the appeal was made upon this identical ground. In denying the motion this court with the concurrence of all of its members said: “The transcript in this case con sists of certified copies of the decree, notice of appeal and undertaking. This is just suck a transcript as is prescribed by section 554, L. O. L. as amended by L. 1913, p. 612, and is sufficient to give the court jurisdiction.” See, also, MacMahon v. Hull, 63 Or. 133, 137 (119 Pac. 348, 124 Pac. 474, 126 Pac. 3).

Again, in Credit Service Co. v. Peters, 116 Or. 138 (216 Pac. 742), on a motion to dismiss the appeal on the ground that the bill of exceptions had not been filed in this court until after the filing of the transcript, the abstract of record and appellant’s brief, the motion was denied and this court without dissent said:

“The transcript as filed contained a certified copy of the judgment appealed from of the notice of appeal and proof of service thereof and of the undertaking on appeal. The filing of this transcript was jurisdictional and when these papers were filed this court acquired jurisdiction of this cause upon appeal. * * ”

It will thus be seen that this court by its rules and by its former decisions has given to this statute a well-settled construction and has uniformly held that the filing in a law action within the time limited of a transcript containing only a certified copy of the judgment appealed from, the notice of appeal and proof of service and of the undertaking, is sufficient to give this court jurisdiction of the cause, and that the subsequent filing within the time limited of a printed abstract containing so much of the record as may be necessary to a full understanding of the questions presented for decision complies with all the requirements of the statute, and entitles the appellant to be heard upon the appeal.

From this it follows that the construction placed on this statute in Sitton v. Goodwin is incorrect and that in so far as that decision conflicts with what is said here, it is hereby overruled.

As stated, the bill of exceptions was not filed in this court until June 24, 1926. The reason for the delay in filing the bill of exceptions was the inability of defendant to obtain from the court reporter a transcript of the evidence and this delay occurred without any fault or neglect on defendant’s part. As we read the record, orders extending the time in which to file a bill of exceptions were made by the trial court and the bill of exceptions was finally settled and filed in that court and then as stated filed here. The contention is made that this appeal must be dismissed because of this delay in filing the bill of exceptions in this court and also because of an alleged interval between the time of the trial and the time when the bill of exceptions was filed in the lower court in which no order of extension had been made. The first contention is not tenable under the doctrine announced in Credit Service Co. v. Peters, supra, Washburn v. Interstate Invest. Co., 26 Or. 436 (36 Pac. 533, 38 Pac. 620), Gar-bade v. Larch Mountain Inv. Co., 36 Or. 368 (59 Pac. 711), and McGregor v. Oregon R. & N. Co., 50 Or. 527 (93 Pac. 465, 14 L. R. A. (N. S.) 668). The last contention is not tenable under the doctrine announced in West v. McDonald, 74 Or. 421 (144 Pac. 655), Francis v. Mutual Life Ins. Co., 61 Or. 141 (114 Pac. 921), and McElvain v. Bradshaw, 30 Or. 569 (48 Pac. 424).

The statute directs that the appellant shall file “a transcript or such an abstract as the law or rules of the court may require of so much of the record as may be necessary to intelligibly present the question to be decided,” and we have held in accordance with our rules and decisions that the appellant must file both a transcript and an abstract, and that the transcript is sufficient in a law action if it merely contains a certified copy of the judgment, the notice of appeal and proof of service and of the undertaking, and that upon the filing of a transcript containing those papers only, this court has jurisdiction of the cause. We have also held and our rules so provide, that this must be followed within the time limited by a printed abstract which must contain sufficient of the record for a proper understanding of the question for decision, and that this latter requirement of the statute is not jurisdictional. The term “jurisdiction,” as applied to the subject matter of this statute, means the power to hear and determine the questions presented for decision upon the appeal. The question of whether the papers filed in a given case do or do not present enough of the record to intelligibly present the questions to be decided is a judicial question which this court alone can decide, and which it has authority to decide in every appealed case. It is no more within the power of the legislature to determine that question than it would be for that body to decide whether a complaint filed in the Circuit Court states facts sufficient to constitute a cause of action; both are questions of law and both must be decided by courts having jurisdiction to make the decision and the power to decide them is exclusively reserved by the constitution of the state to the courts alone. However, the legislature does have the power to prescribe that the appellant shall file so much of the record as may be necessary to intelligibly present the questions to be decided, and it does have the power to prescribe the time in which that record must be filed in this court. These provisions of the statute, while not jurisdictional, are mandatory and must be obeyed. As stated the printed abstract was not filed in this court until the first day of the second term following the appeal. Until that time there was no record presented here sufficient to explain any question to be decided upon the appeal. The statute expressly says that the time for filing the transcript or abstract may be extended; but it also provides that it shall not be extended beyond the term next following the appeal.

Appellant’s failure to file this part of the record was fatal to the appeal and the motion to dismiss must therefore be allowed. And it is further ordered that a judgment be entered in favor of plaintiff and against the defendant Fireman’s Fund Insurance Company and its surety upon appeal, the United States Fidelity & Guaranty Company, for the amount of the judgment entered in the court below with interest and costs in this court.

Appeal Dismissed and Judgment Entered.