Murray Well-Drilling v. Deisch

• Decision Date: 13 February 1985
• Docket Number: WELL-DRILLING
• Citation: 75 Or.App. 1,704 P.2d 1159
• Parties: MURRAY, 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. CC83-179, CC83-294; CA A33850. . Submitted on Respondent's Petition for Reconsideration
• Court: Oregon Court of Appeals

Page 1159

704 P.2d 1159

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.

CC83-179, CC83-294; CA A33850.

Court of Appeals of Oregon.

Submitted on Respondent's Petition

for Reconsideration Feb. 13, 1985.

Filed Jan. 9, 1985.

Decided Aug. 14, 1985.

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.

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 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 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.

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 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 shall have jurisdiction of the cause, pursuant to rules of the court, but the trial court shall have such powers in connection with the appeal as are conferred upon it by law * * *."

In State v. Casey, supra, the Supreme Court affirmed the defendant's murder conviction, including the sentence of death. No petition for rehearing was filed, and in due course the court entered its mandate ⁵ transmitting the decision to the trial court. Subsequently, the defendant moved for recall of the mandate and to substitute a mandate of life imprisonment on the grounds that an accomplice in the crime had been acquitted and that the defendants had not had the effective assistance of counsel. In determining whether it had jurisdiction to grant the relief requested in the motion, the Supreme Court said:

"It is a general rule that appellate jurisdiction of the Supreme Court over a case ceases when the case has been determined and remanded to the lower court and the mandate has been entered of record in that court. However, a mandate may be recalled by the appellate court for the purpose of correcting errors, or for making clear the meaning and effect of the judgment made in the appellate court." 108 Or. at 420, 213 P. 632. ⁶ (Citations omitted.)

We reasoned that, once a notice of appeal is filed in the manner prescribed in ORS 19.023, 19.026 and 19.029, this court has jurisdiction of the cause and the trial court does not, until issuance of the appellate judgment pursuant to ORS 19.190 and ORAP 11.03. ⁷ In this case, the first notice of appeal was filed on September 27, 1984, and the appellate court decision finally disposing of that case did not issue until November 29, 1984, after the expiration of the period during which either party could have petitioned for review of the order of dismissal. If our legal predicate is correct, then the trial court was without jurisdiction to enter the judgment of October 3, 1984, that judgment is a nullity and this appeal appropriately was dismissed for want of a final, appealable judgment.

In its petition for reconsideration, DVA refers to State v. Haynes, 232 Or. 330, 375 P.2d 550 (1962), where the defendant filed a notice of appeal from an order denying his motion to dismiss on the ground that he had been once in jeopardy for the same offense. He had also moved in the trial court for a stay of the trial pending the outcome of the appeal. The court on its own motion dismissed the appeal as being from a nonappealable order. The court also said:

"The court below erred in granting a stay pending the determination of this appeal. It is true that when an appeal is authorized by statute, as in State v. Jackson, 228 Or. 371, 365 [75 Or.App. 8] P.2d 294, the taking of an appeal vests jurisdiction in the appellate court and deprives the trial court of jurisdiction to proceed further with the cause. When an appeal is not authorized by statute, the attempt to take an appeal neither vests this court with jurisdiction nor deprives the trial court of jurisdiction to proceed with the cause." 232 Or. at 332, 375 P.2d 550.

The distinction between an appeal that vests jurisdiction in the appellate court and one that does not seems easy and reasonable enough until one considers the consequences of the rule. In Custom Harv. Oregon v. Smith Truck & Tractor, 66 Or.App. 127, 672 P.2d 1364 (1983), the plaintiff recovered a judgment against the defendants, who appealed. This court dismissed the appeal for lack of jurisdiction on the ground that the appellants had failed to serve timely all of the court reporters who had reported the trial, as expressly required by ORS 19.023(2). Subsequently, the Supreme Court, 296 Or. 711, 678 P.2d 268 (1984), reversed that decision and held that this court did have jurisdiction of the appeal. The court said that the failure to serve court reporters timely was not a jurisdictional defect. Similarly, in May v. Josephine Memorial Hospital, 64 Or.App. 672, 669 P.2d 824 (1983), this court determined that it lacked jurisdiction over the appeal because the document purporting to be an appealable judgment disposing of fewer than all claims pleaded did not comply...