661 931, 294 650 1983 931 661 931 294 650 In the Matter of the Estate of Randolph Bert DeMary, Deceased. Thomas Waybrant, Personal Representative of the Estate of Rosalie Lynn Waybrant, Deceased, Petitioner on Review, v. James Bernstein, Personal Representative of the Estate of Randolph Bert DeMary, Deceased, Respondent on Review. Tc 7

• Citation: 661 P.2d 931,294 Or. 650
• Parties: Page 931 661 P.2d 931 294 Or. 650 In the Matter of the ESTATE OF Randolph Bert DeMARY, Deceased. Thomas WAYBRANT, Personal Representative of the Estate of Rosalie Lynn Waybrant, Deceased, Petitioner on Review, v. James BERNSTEIN, Personal Representative of the Estate of Randolph Bert DeMary, Deceased, Respondent on Review. TC 7
• Decision Date: 06 April 1983
• Court: Supreme Court of Oregon

Page 931

661 P.2d 931

294 Or. 650

In the Matter of the ESTATE OF Randolph Bert DeMARY, Deceased.

Thomas WAYBRANT, Personal Representative of the Estate of Rosalie Lynn Waybrant, Deceased, Petitioner on Review v James BERNSTEIN, Personal Representative of the Estate of

Randolph Bert DeMary, Deceased, Respondent on Review.

TC 77-3-25; CA A24324; SC 28700.

Supreme Court of Oregon.

Argued and Submitted Oct. 4, 1982.

Decided April 6, 1983.

Adelbert G. Clostermann, Portland, argued the cause for petitioner on review and filed the court requested memorandum and petition in the Supreme Court.

James C. Tait, Oregon City, filed the response and supplemental memorandum in the Supreme Court and argued the cause for respondent on review.

CARSON, Justice.

The issue presented by this case is whether the circuit court order that denied the plaintiff's ¹ motion to vacate a prior decree closing an estate and discharging the defendant as personal representative is an appealable order.

The plaintiff's decedent was fatally injured in a one-car accident while riding as a passenger. The driver, Randolph DeMary, was also killed. For the purpose of prosecuting a wrongful death action against DeMary, the plaintiff petitioned the Clackamas County Circuit Court for an order opening DeMary's estate and appointing a personal representative. ORS 113.035. The defendant was appointed the DeMary estate's personal representative. The plaintiff's action against the defendant proceeded to trial. On May 20, 1980, however, the action was dismissed without prejudice. See ORCP 54.

Subsequently, on August 5, 1980, a decree was issued which closed the DeMary estate and discharged the defendant as personal representative. This decree was not appealed, though it was appealable. ORS 116.113(4); Lothstein v. Fitzpatrick, 171 Or. 648, 657, 138 P.2d 919 (1943).

On May 1, 1981, the plaintiff refiled his action against the DeMary estate. ² See ORS 12.220. The defendant moved to dismiss the complaint based on the probate order of August 5, 1980, that closed the estate and discharged him as personal representative. In October of 1981, in the case at bar, the plaintiff filed a motion denominated a "Motion to Vacate Order Closing Estate" in an attempt to have the DeMary estate reopened contending that he had no notice that the defendant had moved to close the estate or that the decree had been entered. This motion was denied by an order dated March 22, 1982. The plaintiff filed a notice of appeal citing this order but the Court of Appeals ruled that it was nonappealable and sua sponte dismissed the appeal. ³ See State v. Curran, 291 Or. 119, 122, 628 P.2d 1198 (1981). We granted review to consider whether the order denying the motion to reopen was appealable.

Analysis of appealability begins with the recognition of some basic precepts. A party does not have an inherent right to appellate court review; the right to appeal is wholly statutory and an appellant must establish that the decision from which the appeal is taken is appealable under some statutory provision. Ragnone v. Portland School District No. 1J, 289 Or. 339, 341, 613 P.2d 1052 (1980); City of Portland v. Mima Corp., 132 Or. 660, 663, 285 P. 815 (1930). However, we have said that "in a close case, * * * any doubts should be resolved against such a result as would bar the appellant from an appeal." David M. Scott Construction v. Farrell, 285 Or. 563, 568, 592 P.2d 551 (1979); Spencer v. City of Portland, 114 Or. 381, 391, 235 P. 279 (1925).

The plaintiff has not contended that the order denying his motion to vacate is a "final judgment" (see ORCP 67 A. (former ORS 18.010) and ORS 19.010(1)), or that it is appealable under some special statutory provision. Rather, he relies upon the provisions of ORS 19.010, the statute which generally governs the right to appeal in civil proceedings. See ORS 111.105(2). ORS 19.010(2) provides that certain orders, not otherwise final judgments, are appealable. In particular, the plaintiff cites subsection (2)(c): ⁴

"(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:

" * * *

"(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree."

Although the order appealed from here fits within the literal language of ORS 19.010(2)(c), this court, in construing this provision, has nonetheless recognized a "general rule" that "an order denying a motion to vacate an appealable order, judgment or decree is not appealable." Columbia Auto Works v. Yates, 176 Or. 295, 308, 156 P.2d 561 (1945). See Dressler v. Isaacs, 236 Or. 269, 387 P.2d 364 (1964); State Unemployment Comp. Comm. v. Bates, 227 Or. 357, 360, 362 P.2d 321 (1961); Orr v. Orr, 75 Or. 137, 143, 144 P. 753, 146 P. 964 (1915). This principle is perhaps best exemplified by the well-established rule that the denial of a motion to set aside a judgment and grant a new trial is not appealable. Clarizo v. Spada Distributing Co. Inc., 231 Or. 516, 522, n. 2, 373 P.2d 689 (1962); Macartney v. Shipherd, 60 Or. 133, 136-37, 117 P. 814 (1911).

The declaration that such orders are nonappealable is founded on sound principles of finality and judicial efficiency. Where an appellant could have appealed from the underlying judgment, decree, or order, he or she will not be permitted two bites of the appellate apple through the expediency of filing a motion to vacate the same and appealing from the denial thereof. Insofar as the appeal is based upon the substantive correctness of the prior appealable judgment, decree, or order, the appeal must be from its issuance and be perfected within the time prescribed by statute. When the statutory time for appeal has expired and the right to appeal has lapsed, a party cannot resurrect the right to appeal by asking the court to reconsider the ruling--otherwise, there would be no finality to judgments.

Notwithstanding these considerations, this court has recognized exceptions to the general rule, two of which are potentially applicable here. First, where an appellant's motion to vacate was based upon a contention that the prior judgment was entered against him or her as a result of his or her "mistake, inadvertence, surprise, or excusable neglect" (i.e., a motion pursuant to ORCP 71 B. (1)(a) or its predecessor, ORS 18.160), a denial of that motion is appealable. Colwell v. Chernabaeff, 258 Or. 373, 376, 482 P.2d 157 (1971); Nedry v. Herold, 141 Or. 167, 173, 11 P.2d 548, 13 P.2d 372 (1932). Secondly, where the original order is void, an appeal will lie from an order refusing to vacate it. Salitan v. Dashney, 219 Or. 553, 559, 347 P.2d 974, (1959); see Columbia Auto Works, Inc. v. Yates, supra, 176 Or. at 308-09, 156 P.2d 561; ORCP 71 B. (1)(d). We note that in both instances, the essence of the claim is not so much the substantive correctness of the original offending decision, but rather the propriety of the court's refusal to vacate it. Thus, instead of the appellate court being confronted with a belated review of the merits, the court is being asked more narrowly to decide whether, on procedural grounds, the appellant is entitled to have the prior decision set aside and the case reopened. ⁵

Here, the plaintiff's motion to vacate was based upon his allegation that the August decree closing the DeMary estate and discharging the defendant as personal representative had been improperly issued without his knowledge. With regard to the first of the exceptions to the general rule noted above, this does partake of a motion for relief from a judgment based on excusable neglect. The probate statutes contain a provision pertinent here. ORS 116.213 provides, in relevant part:

" * * * The court may, in its discretion and upon such terms as may be just, within one year after entry of the order of discharge, permit an action to be brought against the personal representative and his surety if the order of discharge was taken through fraud or misrepresentation of the personal representative or his surety or through the mistake, inadvertence, surprise or excusable neglect of the claimant."

This statute is similar in scope and purpose to ORCP 71 B. (1) and we will assume, arguendo, that the exception making the denial of a motion pursuant to the latter appealable also obtains with regard to the former. The plaintiff, however, failed properly to allege a right to relief on this ground. His motion to vacate cited neither ORCP 71 B. (1), former ORS 18.160, nor ORS 116.213, and did not specifically allege "mistake, inadvertence, surprise, or excusable neglect" (much less fraud or misrepresentation). In any event, his motion was filed more than a year after the issuance of the August decree. Accordingly, we conclude that the plaintiff's motion to vacate does not fit within the first exception noted above.

The second exception--viz., that an order refusing to vacate a void order is appealable--presents more of a problem. Salitan v. Dashney, supra, involved a judgment which was void because it had been entered in excess of the trial court's jurisdiction. See also, Lee v. Lee, Brown, 5 Or.App. 74, 482 P.2d 745 (1971). Cases from other jurisdictions are in accord and require that the underlying judgment be void, rather than merely erroneous or voidable, before an appeal will lie from an order refusing to set it aside. See Annot., 81 ALR2d 537, § 11 (1962). Here the challenged decree is not facially void, having been duly entered by a court which had subject matter jurisdiction over DeMary's estate.

Because the Court of Appeals summarily dismissed the plaintiff's appeal, apparently as a matter of law, despite his contention that the decree was void as to him, we must determine whether the plaintiff has established a colorable claim in that respect which would mandate further analysis by that court. The question thus presented is whether the defendant's alleged failure to give notice to the plaintiff prior...