Pohrman v. Klamath County Com'rs, 73--21

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

Page 70

538 P.2d 70

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, In Banc.

Argued and Submitted June 2, 1975.

Decided June 26, 1975.

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.

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).

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 procedure plus other deficiencies caused a movement for the reform of appellate procedure. In 1959 a committee of the Oregon State Bar, a legislative interim committee and the legislature sought to simplify appellate procedure. Legislation was proposed by these groups. The interim committee stated in its report, 'The most important thing about this subsection (ORS 19.033(1)) however, is that the filing of the notice is the only act which is jurisdictional. There are other mandatory steps, but none which must in any event be done timely and properly on pain of summary dismissal.' Report of Legislative Interim Committee on Judicial Administration, Jan.1959, at 77.

As a result of these studies the legislature enacted ch. 558, Oregon Laws 1959.

The groups studying appellate procedure had recommended that service of the notice of appeal itself be eliminated but the legislature did not do so. However, neither legislative history nor the language of the 1959 amendments indicates any intention by the legislature to retain endorsement of proof of service on the notice as a jurisdictional requirement. Subsequent amendments to this section, ORS 19.033, contain some indication that the intent of the legislature was that the required contents of the notice of appeal are not to be jurisdictional.

ORS 19.033, as amended in 1959 and in its present form, provides:

'(1) When the notice of appeal has been served and filed as provided in ORS 19.023 to 19.029, the Supreme Court * * * shall have jurisdiction of the cause, * * * but the trial court shall have such powers in connection with the appeal as are conferred upon it by law.

'(2) The serving and filing of the notice of appeal as provided in ORS 19.023 to 19.029 is jurisdictional and may not be waived or extended.'

ORS 19.023 provides:

'(1) An appeal to the Supreme Court or the the Court of Appeals shall be taken in the manner prescribed in ORS 19.023 to 19.065 and 19.074 to 19.190.

'(2) A party to a judgment desiring to appeal therefrom, or some specified part thereof, shall cause a notice, signed by himself or his attorney, to be served on all parties as have appeared in the action, suit or proceeding and file the original, with proof of service indorsed thereon or affixed thereto, with the clerk.

'(3) The notice shall be in the form prescribed in ORS 19.029, shall be filed within the time prescribed in ORS 19.026.'

ORS 19.029 provides:

'(1) The notice of appeal shall contain the following:

'(a) The title of the cause.

'(b) The names of the parties and their attorneys.

'(c) A notice to all parties or their attorneys as have appeared in the action, suit or proceedings that an appeal is taken from the judgment or some specified part thereof and designating who are the adverse parties to the appeal.

'(d) A designation of those portions of the proceedings and exhibits to be included in the record in addition to the trial court file. The designation may not be later amended by the appellant unless the appellate court so orders.

'(e) A plain and concise statement of the points on which the appellant intends to rely. On appeal, the appellant may rely on no other points than those set forth in such statement. If the appellant has designated for inclusion in the record all the testimony and all the instructions given and requested, no statement of points is necessary. Not later than the 15th day following the filing of the transcript, the appellant may serve and file an amended statement of points. Except by approval of the court, the appellant may then rely on no other points than those set forth in such amended statement.

'(2) Within 10 days after the filing of the notice of appeal any other party may serve and file a designation of additional parts of the proceedings and exhibits to be included in the record. If such party also appeals the designation shall be included in his notice of appeal.

'(3) The reporter shall prepare a transcript of such parts of the proceedings as are designated pursuant to paragraph (d) of subsection (1) of this section and subsection (2) of this section.'

Subsequent to 1959 the general trend of our decisions passing on the effects of defects in appellate procedure has been to regard the defects as not being jurisdictional.

In Gordon Creek Tree Farms v. Layne, 230 Or. 204, 358 P.2d 1062 (1962), the appellant neglected to file with his notice of appeal a designation of the parts of the proceedings he desired to be included in the record.

ORS 19.023, the same section that provides that the proof of service be endorsed on the notice of appeal, as amended in 1959, provided that the notice shall be filed 'and shall be accompanied by the designation required by ORS 19.074.' That refers to the designation of the proceedings to be included in...