Baskin v. Marion County

• Decision Date: 19 May 1914
• Citation: 70 Or. 363,141 P. 1014
• Parties: BASKIN v. MARION COUNTY.
• Court: Oregon Supreme Court

141 P. 1014

70 Or. 363

BASKIN v. MARION COUNTY.

Supreme Court of Oregon

May 19, 1914

In Banc.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Action by O. R. Baskin against Marion County. From a judgment for plaintiff, defendant appeals. Motion to dismiss appeal granted. Petition for rehearing denied.

W. C Winslow, of Salem, for appellant. W. T. Slater and M. E Pogue, both of Salem, for respondent.

BURNETT, J.

The appeal in this case was dismissed because the notice was not signed by the district attorney, who is the law officer of the county defendant. The member of the bar who signed that document has presented a petition for rehearing, and complains strenuously because no opinion was filed. We deemed an opinion unnecessary, as we supposed that, the court having acquired no jurisdiction by the abortive attempt to appeal the district attorney would himself take an appeal relying upon such authorities as Holladay v. Elliott, 7 Or 483; Schmeer v. Schmeer, 16 Or. 243, 17 P. 864; Van Auken v. Dammeier, 27 Or. 150, 40 P. 89; Fisher v. Tomlinson, 40 Or. 111, 60 P. 390, 66 P. 696, if he deemed it advisable to appeal at all.

A proper notice of appeal is necessary to give this court jurisdiction. We cannot proceed without it. The right of appeal is statutory, and to be enjoyed, the procedure authorizing it must be strictly followed. Portland v. Gaston, 38 Or. 533, 63 P. 1051; Sears v. Dunbar, 50 Or. 36, 91 P. 145; Portland v. Nottingham, 58 Or. 1, 113 P. 28; Macartney v. Shipherd, 60 Or. 133, 117 P. 814, Ann. Cas. 1913D, 1257.

Unless the appeal is taken in open court when the decision appealed from is rendered, it is provided, by section 550, L. O. L., that:

"The party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney," etc.

To ascertain the definition of "attorney" as used in this section we must turn, not to some private contract which the county court possibly may have made with the one who signed the notice of appeal in the present juncture, but rather to the law, which is paramount to any such agreement. That law is found in section 17 of article 7 of the original state Constitution, wherein it is declared that:

"There shall be elected by districts comprised of one or more counties, a sufficient number of prosecuting attorneys, who shall be the law officers of the state, and of the counties within their respective districts. * * *"

The doctrine of that excerpt is in force at the present day, no change having been provided by law under the terms of the amended article 7 of the state Constitution. The case of Taylor v. Umatilla County, 6 Or. 394, upon which counsel assuming to act for the county in this case strongly relies, was decided under a statute which did not require the notice of appeal to be signed by the appellant or his attorney, and in that respect is distinguishable from the present procedure under section 550, L. O. L., which affirmatively requires such a paper to be thus subscribed. The dictum in ...