Cooke v. Traver

Citation184 P.2d 866,181 Or. 643
PartiesCOOKE <I>v.</I> TRAVER
Decision Date23 September 1947
CourtOregon Supreme Court

1. The statutory requirement for filing notice of appeal with proof of service indorsed thereon is jurisdictional, and requisite proof cannot be supplied by affidavit or in any other manner. O.C.L.A. § 10-803.

Appeal and error — Notice of appeal — Jurisdictional

2. The rule that statutory requirement as to filing notice of appeal with proof of service indorsed thereon is jurisdictional was not changed by 1943 amendment. O.C.L.A. § 10-803.

Appeal and error — Dismissal of appeal

3. The filing of notice of appeal without proof of service indorsed thereon or filed therewith as provided by statute required dismissal of appeal, notwithstanding subsequent filing of affidavit containing proof of service. O.C.L.A. § 10-803.

                  See, note, 88 A.L.R. 419; 3 Am. Jur. 153; 4 C.J.S., Appeal and
                error, § 594
                

IN BANC.

Appeal from Circuit Court, Jackson County.

H.K. HANNA, Judge.

Marsh & Marsh, of McMinnville, for Respondent.

Allen & Roberts, of Portland, and George Roberts, of Medford, for Appellant.

MOTION GRANTED.

LUSK, Acting Chief Justice.

Respondent has moved to dismiss the appeal for the reason that the notice of appeal given by the appellant does not comply with the statutory requirement that, after service of such notice on the adverse party or his attorney, "the original, with proof of service indorsed thereon", shall be filed with the clerk of the court in which the judgment, order or decree is entered. The statute provides:

"If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may cause a notice signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place where he or they may be found and file the original, with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered." (Italics added) § 10-803, O.C.L.A., as amended by Ch. 119, Oregon Laws, 1943.

The record before us shows that the original notice of appeal was filed with the clerk of the Circuit Court on June 25, 1947, but no proof of service was indorsed thereon or filed therewith. No showing in opposition to the motion has been made by the appellant, other than that under date of August 27, 1947, and on the same day that the motion to dismiss was filed, one of the attorneys for the appellant filed with the clerk of this court an affidavit stating that "I mailed the notice of appeal and a copy of the bond or undertaking on appeal to Messrs. Eugene Marsh and Francis Marsh, Attorneys at Law, to McMinnville, Oregon, under date of July 25, 1947, which notice and copy of bond was received by the said Marsh & Marsh, Attorneys, for the Plaintiff-Respondent, in the above entitled suit."

1, 2. The requirement of the statute as to proof of service of the notice of appeal is jurisdictional. Muckle v. Columbia County, 56 Or. 146, 108 P. 120; Catlin v. Jones, 56 Or. 492, 108 P. 633. As stated in the latter case, "the requisite proof cannot be supplied by affidavit or in any other manner." These decisions were rendered before the adoption of Ch. 119, Oregon Laws, 1943, but the amendment has not changed the law in this regard. Pond v. Jantzen Knitting Mills, ___ Or. ___, 180 P. (2d) 115; Martin v. Harrison, ___ 180 P. (2d) 119; Williams v. Ragan, 175 Or. 328, 333, 143 P. (2d) 209. R...

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5 cases
  • Pohrman v. Klamath County Com'rs, 73--21
    • United States
    • Oregon Supreme Court
    • June 26, 1975
    ...because the proof of service was not on the notice as filed it had no jurisdiction. The court correctly interpreted Cooke v. Traver, 181 Or. 643, 184 P.2d 866 (1947); Knapp v. Olson, 214 Or. 206, 328 P.2d 772 (1958), and Stiehl v. Greene, decided on the motion docket Nov. 16, 1971, with a d......
  • Meury v. Jarrell
    • United States
    • Oregon Court of Appeals
    • April 16, 1974
    ...the statutory requirements of serving the notice on the other party and filing proof thereof. These rules were noted in Cooke v. Traver, 181 Or. 643, 184 P.2d 866 (1947). In that case the court said that if no proof of service is noted on the notice of appeal, jurisdiction is not conferred.......
  • Hartman v. Hartman
    • United States
    • Oregon Court of Appeals
    • March 16, 1970
    ...as provided in ORS 19.023 to 19.029 is jurisdictional and may not be waived or extended.' A similar motion was made in Cooke v. Traver, 181 Or. 643, 184 P.2d 866 (1947). The pertinent statutory provision at that time was OCLA § 10--803, which also required the filing of a notice of appeal, ......
  • Stiehl v. Greene
    • United States
    • Oregon Supreme Court
    • August 30, 1971
    ...In my opinion the applicable statute did not compel this result; however, we continued to adhere to that early rule. Cooke v. Traver, 181 Or. 643, 184 P.2d 866 (1947). In 1959 a committee of the Oregon State Bar, a legislative interim committee and the legislature sought to simplify appella......
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