538 P.2d 70 (Or. 1975), Pohrman v. Klamath County Com'rs

Citation:538 P.2d 70, 272 Or. 390
Party Name:In the Matter of the Application for Change of Zone, No. 73--21. Howard A. POHRMAN, Petitioner, v. KLAMATH COUNTY COMMISSIONERS et al., Respondents.
Case Date:June 26, 1975
Court:Supreme Court of Oregon
 
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Page 70

538 P.2d 70 (Or. 1975)

272 Or. 390

In the Matter of the Application for Change of Zone, No. 73--21.

Howard A. POHRMAN, Petitioner,

v.

KLAMATH COUNTY COMMISSIONERS et al., Respondents.

Supreme Court of Oregon, En Banc

June 26, 1975

Argued and Submitted June 2, 1975.

Page 71

James W. Lock, Burns & Lock, P.C., Gresham, argued the cause for petitioner.

Bradford, J. Aspell, Boivin & Boivin, Klamath Falls, argued the cause for respondents.

DENECKE, Justice.

The Court of Appeals dismissed petitioner's appeal because of a defect in the notice of appeal. We granted the petition for review.

[272 Or. 391] Petitioner filed and duly served a timely notice of appeal. That service was made is not in issue. Petitioner did not 'affix' or 'endorse thereon' a proof of service until after the time for appeal had expired. The Court of Appeals held that 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 dissent at 260 Or. 315, 491 P.2d 1183, as requiring such a decision.

We now conclude that those decisions are incorrect. They are overruled and we reverse.

The statute which is now ORS 19.023 has been the law for years and provides that the notice of appeal which is filed should have 'proof of service endorsed thereon or affixed thereto.'

In Briney v. Starr, 6 Or. 207 (1870), the appellant filed his notice of appeal on July 2nd. Proof of service was not endorsed or affixed thereto. In September, after the time for appeal had expired, appellant attached an affidavit to the notice of appeal. The affidavit stated that service had been made on July 2nd. The respondent denied that he had been served. The court stated, '* * * we hold that without any leave obtained below, the act of the attorney was unauthorized, and of no effect; and no proof of proper service existing, the appeal is dismissed.' 6 Or. at 209.

In a succession of cases this limited holding was expanded to be the cornerstone of a broad proposition that endorsing or affixing of proof of service on the notice of appeal was jurisdictional; that is, if the endorsement was lacking the appeal had to be dismissed regardless of the merit of the excuse for the lack of endorsement. Muckle v. Columbia County, 56 Or. 146, 108 P. 120 (1910).

[272 Or. 392] In the modern era, but before 1959, we continued to adhere to this proposition. Cooke v. Traver, supra (181 Or. 643, 184 P.2d 866). Cooke was consistent with the then current tenor of our decisions that many of the requirements for appeal were jurisdictional and the failure to fulfill these requirements could not be excused regardless of the merit of the excuse.

This inflexibility in appellate...

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