704 P.2d 1159 (Or.App. 1985), CA A33850, Murray Well-Drilling v. Deisch

Docket Nº:CC83-179, CC83-294; CA A33850.
Citation:704 P.2d 1159, 75 Or.App. 1
Opinion Judge:JOSEPH, C. J.
Party Name:MURRAY WELL-DRILLING, an Oregon corporation, Appellant, v. Chester V. DEISCH, Jr., and Alana D. Deisch, Defendants, State of Oregon, acting By and Through the Director of Veterans' Affairs, Respondent. STATE of Oregon, acting By and Through the DIRECTOR OF VETERANS' AFFAIRS, Respondent, v. Chester V. DEISCH, Jr., and Alana D. Deisch, Defendants, Mu
Attorney:Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Richard D. Wasserman, Assistant Attorney General, Salem, for petition.
Case Date:August 14, 1985
Court:Court of Appeals of Oregon
 
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Page 1159

704 P.2d 1159 (Or.App. 1985)

75 Or.App. 1

MURRAY WELL-DRILLING, an Oregon corporation, Appellant,

v.

Chester V. DEISCH, Jr., and Alana D. Deisch, Defendants,

State of Oregon, acting By and Through the Director of

Veterans' Affairs, Respondent.

STATE of Oregon, acting By and Through the DIRECTOR OF

VETERANS' AFFAIRS, Respondent,

v.

Chester V. DEISCH, Jr., and Alana D. Deisch, Defendants,

Murray Well-Drilling, Inc., Appellant.

Nos. CC83-179, CC83-294; CA A33850.

Court of Appeals of Oregon.

August 14, 1985

Submitted on Respondent's Petition for Reconsideration Feb. 13, 1985.

Filed Jan. 9, 1985.

Page 1160

[75 Or.App. 2] Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Richard D. Wasserman, Asst. Atty. Gen., Salem, for petition.

No appearance contra.

Before WARDEN, P.J., JOSEPH, C.J., and YOUNG, J.

[75 Or.App. 3] JOSEPH, Chief Judge.

The State of Oregon (DVA) has petitioned for review of our order dismissing this appeal. See ORAP 10.10(1). We grant the petition for reconsideration and adhere to the order.

The initial question is whether DVA is an "aggrieved party" within the meaning of ORS 2.520. 1 It appears from the judgment that DVA was the prevailing party at trial and that Murray Well-Drilling, Inc. (Murray) was the losing party. Murray filed a notice of appeal designating DVA as respondent. DVA did not file a notice of appeal or, after the filing of Murray's notice of appeal, a notice of cross-appeal. On our own motion, we dismissed the appeal for lack of jurisdiction. Although that action would seem to favor DVA, DVA has petitioned for review, and Murray has not. Under the circumstances of this case, however, we conclude that DVA is an aggrieved party and is entitled to petition for reconsideration.

This appeal arises from consolidated actions. In the first action, Murray is the plaintiff and the Deisches and DVA are the defendants. In the second, DVA is the plaintiff and the Deisches and Murray are the defendants. The underlying issue appears to be the priority of the parties' interests in certain real property.

On September 4, 1984, the trial court entered an order allowing DVA's motion for summary judgment. On September 27, 1984, Murray filed a notice of appeal from the order allowing summary judgment. On October 12, 1984, we dismissed that appeal for lack of jurisdiction, because the summary judgment order was not a final order or judgment under ORS 19.010. Our order of dismissal cited Cenci v. The Ellison Company, 289 Or. 603, 617 P.2d 254 (1980), and City of Portland v. Carriage Inn, 296 Or. 191, 673 P.2d 531 (1983). On November 29, 1984, pursuant to ORS 19.190 and ORAP 11.03, after expiration of the period within which either party could petition for review of the order of dismissal, this court issued [75 Or.App. 4] its appellate court judgment transmitting a copy of our order of dismissal to the trial court.

Meanwhile, on October 3, 1984, a document entitled "Judgment and Decree of Foreclosure" 2 was signed by the trial

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judge and entered in the circuit court journal. On November 5, 1984, Murray filed a new notice of appeal, identifying the judgment of October 3 as the judgment being appealed. That notice of appeal forms the basis for this appeal. DVA did not file either a notice of appeal or a notice of cross-appeal with respect to Murray's second appeal.

It initially appeared that that second notice of appeal was untimely, because it was received by the State Court Administrator on November 7, 1984. Accordingly, on December 4, 1984, we issued an order dismissing the appeal on the ground that it was untimely filed. Subsequently, however, it came to our attention that the notice of appeal was mailed by certified mail with proof from the post office of mailing on November 5, 1984. Under those circumstances, the date of mailing is deemed to be the date of filing, ORS 19.028; therefore, the second appeal was timely filed. Accordingly, on January 9, 1985, we issued an order withdrawing that order of dismissal. However, in the course of comparing the first appeal with the second appeal, it appeared that a different ground required dismissal of the appeal on jurisdictional grounds; in the same order on our own motion we dismissed the second 3 appeal. The instant petition for reconsideration relates to that order.

[75 Or.App. 5] The January 9 dismissal was predicated on the court's assumption that the notice of appeal in the first appeal deprived the trial court of jurisdiction to act until the appellate judgment had issued disposing of that appeal. That is, the appellate judgment in the first appeal not having issued until November 29, 1984, the trial court was without jurisdiction to enter the judgment of October 3, 1984. Therefore, we vacated the trial court's October judgment in order to clear the way for entry of a new judgment after issuance of the appellate judgment in the second appeal. Because DVA was the prevailing party under the October judgment, the net result of the second dismissal order was to deprive DVA of the benefit of that judgment. It follows that DVA is an "aggrieved party" within the meaning of ORS 2.520 and is entitled to petition for review.

We now turn to whether we were correct in assuming that the pendency of the first appeal at the time of entry of the judgment of October 3, 1984, deprived the trial court of jurisdiction to enter that judgment in view of the fact that the first appeal ultimately was dismissed on jurisdictional grounds. 4

[75 Or.App. 6]

Page 1162

The order of dismissal cites ORS 19.033(1) and State v. Casey, 108 Or. 386, 213 P. 771, 217 P. 632 (1923), as authority for the dismissal of the second appeal and vacation of the judgment appealed from. ORS 19.033(1) provides in relevant part:

"When the notice of appeal has been served and filed as provided in ORS 19.023, 19.026 and 19.029, the Supreme Court or the Court of Appeals...

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