Bauman v. Gittelsohn

• Decision Date: 19 July 1983
• Docket Number: No. CC-82-329,CC-82-329
• Parties: Robert G. BAUMAN, W.C. Bauman, and Rita F. Bauman, dba Breakers Point Partnership, Appellants, v. Shirley GITTELSOHN and Maurice O. Georges, Respondents. ; CA A28899. . Submitted on Respondent's Motion to Dismiss
• Court: Oregon Court of Appeals

Page 1188

669 P.2d 1188

64 Or.App. 849

Robert G. BAUMAN, W.C. Bauman, and Rita F. Bauman, dba

Breakers Point Partnership, Appellants, v. Shirley GITTELSOHN and Maurice O. Georges, Respondents.

No. CC-82-329; CA A28899.

Court of Appeals of Oregon.

Submitted on Respondent's Motion to Dismiss July 19, 1983.

Oct. 5, 1983.

Reconsideration Denied Nov. 18, 1983.

Jeanyse R. Snow, and MacDonald, McCallister & Snow, Astoria, for the motion.

J. Michael Alexander, and Burt, Swanson, Lathen, Alexander & McCann, Salem, contra.

Before WARDEN, P.J., and WARREN and YOUNG, JJ.

PER CURIAM.

Respondents move to dismiss the appeal because of lack of jurisdiction. The notice of appeal was timely filed on July 11, 1983, the last day for filing the appeal, ORS 19.026, and service was made on that day on respondents and on the Clatsop County Clerk. ORS 19.023(2)(b), as amended by Or Laws 1981, ch. 177, § 1, requires that service be made on the "clerk of the trial court." ¹ Since January, 1983, the County Clerk has not been the Clerk of the Trial Court.

ORS 19.033(2) provides:

"The service and filing of the notice of appeal as provided in ORS 19.023, 19.026 and 19.029 is jurisdictional and may not be waived or extended." (Emphasis supplied.)

Pohrman v. Klamath Co. Comm., 272 Or. 390, 538 P.2d 70 (1975), emphasizes that timely service and filing of the notice of appeal is mandatory.

Appeal dismissed. ²

WARREN, Judge, dissenting.

I would deny the motion to dismiss, because failure to make timely service on the trial court clerk under ORS 19.023(2)(b) does not require dismissal of the appeal, absent a showing that the failure to comply is serious and prejudicial.

In Pohrman v. Klamath Co. Comm., 272 Or. 390, 392, 538 P.2d 70 (1975), the court explained:

"[The] inflexibility in appellate procedure plus other deficiencies caused a movement for the reform of appellate procedure. In 1959 a committee of the Oregon State Bar, a legislative interim committee and the legislature sought to simplify appellate procedure. Legislation was proposed by these groups. The interim committee stated in its report, 'The most important thing about this subsection [ORS 9.023(1) ] however, is that the filing of the notice is the only act which is jurisdictional. There are other mandatory steps, but none which must in any event be done timely and properly on pain of summary dismissal.' Report of Legislative Interim Committee on Judicial Administration, Jan. 1959, at 77."

The appellate procedure statutes remain virtually as adopted in 1959 with the exception of 1981 amendments to ORS 19.023. The purpose of the 1981 amendments was to standardize the method for filing civil and criminal cases. The legislative history reveals no intent to affect the jurisdictional reach of the procedural requirements. See Senate Committee on Justice, March 31, 1981, at 5.

The notice of appeal in this case was filed on July 11, 1983, the last day for filing the appeal, and service was made that day on respondents and on the Clatsop County Clerk. The statute requires that service be made on the trial court clerk. ORS 19.023(2)(b). The trial court clerk was served on July 25, 1983, after an abortive attempt to do so on July 20, 1983, which failed due to no fault of appellant.

Prior cases involving procedural defects in the appellate filing process have produced no clear guideline for dismissal with the exception that filing of the notice of appeal is jurisdictional. Pohrman v. Klamath Co. Comm., supra. Many defects in statutory requirements have been held not to require dismissal. Werline v. Webber, 54 Or.App. 415, 635 P.2d 15, rev. den. 292 Or. 450, 644 P.2d 1128 (1981) (appeal allowed where defendant in her notice of appeal recited the wrong date for entry of judgment and attached a copy of order denying new trial instead of a copy of the judgment); Northern Ins. Co. v. Conn Organ, 40 Or.App. 785, 596 P.2d 605, rev. den. 287 Or. 507 (1979) (failure to name party in notice of appeal and serve party who appeared in the action did not require dismissal where "after the filing of the third amended complaint, all of the defendants, conducted themselves as if the church had never been a party at all"); Pohrman v. Klamath Co. Comm., supra (failure to endorse proof of service on notice of appeal did not require dismissal); Millard v. Mitchell Bros., 261 Or. 165, 492 P.2d 783 (1972) (failure to include designation of record and statement of points in notice of appeal is not jurisdictional); Gordon Creek Tree Farms v. Layne et al., 230 Or. 204, 358 P.2d 1062, 368 P.2d 737 (1962) (failure timely to file designation of parts of proceedings desired to be included in record does not require dismissal).

In Stahl v. Krasowski, 281 Or. 33, 573 P.2d 309 (1978), the court found that the failure to state that the appeal was "taken from the judgment or some specified part thereof" was jurisdictional and the notice of appeal fatally defective. I would follow the spirit of Chief Justice Denecke's...