Barber v. Gladden

CourtSupreme Court of Oregon
Citation210 Or. 46,298 P.2d 986
PartiesGeorge R. BARBER, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
Decision Date27 June 1956

George R. Barber, in pro. per.

Robert Y. Thornton, Atty. Gen., and Peter S. Herman, Asst. Atty. Gen., for motion to dismiss appeal.

BRAND, Justice.

This is an action by George R. Barber wherein he seeks a writ of habeas corpus against Clarence T. Gladden, Warden of the Oregon State Penitentiary, defendant. As will later appear, the plaintiff's action was dismissed and he has appealed to this court. However, the plaintiff has filed in this court no transcript on appeal as required by ORS 19.070 and no judgment roll, as provided by ORS 19.090 and by Rule 3 of this court. Our knowledge that an appeal has been filed is derived from a motion filed by the Attorney General, with affidavits and exhibits attached thereto. Under the statutes now in force, this court acquires jurisdiction of an appeal in a civil case when the notice of appeal has been 'given, and entered in the journal of the court or filed with the clerk, as the case may be, * * *.' ORS 19.030(3). We have been made aware that jurisdiction has vested in this court by the filing of the motion of the Attorney General pursuant to Rule 33 of this court. The motion thus filed prays for an order dismissing the appeal on the ground that the plaintiff has failed to file an undertaking on appeal as required by ORS 19.030(4) and 19.040. Attached to the motion is a copy of the plaintiff's notice of appeal from the order of the circuit court of 17 April 1956, duly certified by the county clerk. Also attached is an affidavit of an assistant attorney general to the effect that on 21 May 1956 he was served with plaintiff's notice of appeal from the order of the circuit court dismissing the action, and that no undertaking had been served upon him. There is another affidavit that no undertaking on appeal has been served upon the defendant Gladden. The motion and affidavits are dated 11 June 1956.

On 8 June the plaintiff presented a motion for

'an order authorizing the Honorable George R. Duncan, Judge of the circuit court of Marion County, to direct the Marion County Treasurer to post an undertaking and pay all fees and costs on appeal in the above-entitled cause. Or in the alternative order the requirement waived.

'The grounds and reasons for this motion is that plaintiff-appellant, is an indigent person wholly without funds personal or otherwise, to pay such fees or costs or to post an undertaking required to prosecute said appeal, and said cause was instituted in the circuit court of Marion County, pursuant to ORS 34.365. * * *'

The motion is accompanied by an affidavit of plaintiff to the effect that he is an indigent person 'wholly without funds, personal or otherwise, nor does he have any security.' This court is without statutory authority to direct the circuit judge to require the treasurer of Marion County to post an undertaking on appeal for plaintiff or to pay all fees and costs on appeal. The Judicial Administration Act of 1953, ORS 2.310 to 2.340, on which plaintiff relies, gives us no such authority. The remaining question is whether we should allow the alternative motion and waive the filing of any undertaking on appeal.

Habeas corpus is a civil action, and appeals are required to be taken 'in like manner and with like effect as in an action. * * *' ORS 34.710. The statute governing appeals in civil actions requires that:

'Within 10 days from the giving of notice or service of notice of the appeal, the appellant shall cause to be served on the adverse party or his attorney an undertaking as provided in ORS 19.040, and within said 10 days shall file with the clerk the original undertaking, with proof of service indorsed thereon. * * *' ORS 19.030(4).

The same section provides that the appeal may be dismissed for failure to give such undertaking. If the statute is constitutional as applied to the case of the plaintiff, we must deny the application for a waiver of the rule requiring an undertaking on appeal, and there being no bond filed or offered, it would then be necessary to dismiss the appeal.

Plaintiff argues with much feeling that plaintiff has a statutory right of appeal and that this court cannot, in view of the Equal Protection Clause of the Fourteenth Amendment, administer the statute so as to deny adequate appellate review to the poor while granting such review to all others. The statute requiring an undertaking on appeal in civil cases and in habeas corpus has been uniformly enforced and never, so far as we know, has it been challenged until now.

A recent decision of the United States Supreme Court requires a reexamination of the issue. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 586, the facts were as follows: The defendants were convicted of armed robbery. Thereafter they moved in the trial court for an order requiring that they be furnished, without cost, a certified copy of the entire record, including a transcript of the proceedings. They alleged that they were poor persons with no means of paying the necessary fees to acquire the transcript and record needed for an appeal. The allegations of poverty were not denied. Under Illinois law 'in order to get full direct appellate review of alleged errors by a writ of error it is necessary for the defendant to furnish the appellate court with a bill of exceptions or report of proceedings at the trial certified by the trial judge. As Illinois concedes, it is sometimes impossible to prepare such bills of exceptions or reports without a stenographic transcript of the trial proceedings.' Griffin v. Illinois, supra. Under Illinois law, except in case of defendants sentenced to death, 'defendants needing a transcript, whether indigent or not, must themselves buy it.' Griffin v. Illinois, supra.

The claim was made by motions in the trial court that failure to provide defendants with the transcript would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The motion was denied. Defendants then filed a petition under the Illinois Post Conviction Hearing Act, Ill.Rev.Stat.1955, ch. 38, §§ 826-832. Under that act only constitutional questions could be raised. It provided that free transcripts could be had under statute if constitutional questions were involved, but the defendants had asserted 'manifest non-constitutional errors' which could not be presented for review without a transcript. This petition was denied and the Illinois Supreme Court affirmed. The United States Supreme Court granted certiorari. In the opinion by a divided court it was held that 'in criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color.' It then cited the provision of the Illinois Constitution, S.H.A., which is similar to Article I, § 10 of the Oregon Constitution, which reads:

'No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.'


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28 cases
  • Jeffreys v. Jeffreys
    • United States
    • United States State Supreme Court (New York)
    • December 4, 1968
    ...172, 256 N.Y.S.2d 803, 204 N.E.2d 849; People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730, supra; Barber v. Gladden, 210 Or. 46, 298 P.2d Apart from some beginnings or glimmerings (discussed infra) there are as yet no similar judicial constitutional commands in civil acti......
  • Chavez v. State, CC 111114537 (SC S064968)
    • United States
    • Supreme Court of Oregon
    • April 4, 2019
    ...appears from the cases, this court applied settled rules to the facts of 364 Or. 673the cases in habeas. See, e.g. , Barber v. Gladden , 210 Or. 46, 57-58, 298 P.2d 986 (1956).8 Those cases do not yield an instance in which this court clearly applied a new constitutional rule retroactively ......
  • Page v. Palmateer
    • United States
    • Supreme Court of Oregon
    • February 5, 2004
    ...what the Supreme Court has stated. See also State v. Flores, 280 Or. 273, 279, 570 P.2d 965 (1972) (so acknowledging); Barber v. Gladden, 210 Or. 46, 52, 298 P.2d 986 (1956) With respect to the retroactive application of federal constitutional decisions, the Supreme Court further explained ......
  • Barber v. Gladden
    • United States
    • Supreme Court of Oregon
    • December 3, 1958
    ...He appealed from an order dismissing his action in that case. The order of dismissal was affirmed in Barber v. Gladden, 1957, 210 Or. 46, 298 P.2d 986, 309 P.2d In the action which is now before us the plaintiff contends that his imprisonment was invalid on five grounds enumerated in his re......
  • Request a trial to view additional results

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