Carver v. Jackson County

• Decision Date: 22 February 1892
• Citation: 22 Or. 62,29 P. 77
• Parties: CARVER v. JACKSON COUNTY.
• Court: Oregon Supreme Court

29 P. 77

22 Or. 62

CARVER v. JACKSON COUNTY.

Supreme Court of Oregon

February 22, 1892

Appeal from circuit court, Jackson county; L.R. WEBSTER, Judge. Affirmed.

The facts fully appear in the following statement by STRAHAN C.J.:

This is a writ of review by E.W. Carver against Jackson county to reverse the action of the county court of Jackson county in the matter of laying out a public road in said county. The circuit court dismissed the writ, and rendered judgment against the plaintiff for costs, from which this appeal was taken.

The notice of appeal is addressed to Jackson county, and to William M. Colvig, district attorney, and, omitting the title, is as follows: "You and each of you are hereby notified that the above-named plaintiff, E.W. Carver, hereby appeals from the decision and judgment rendered in the above-named court, in the above-named cause, on the 29th day of March, 1891, dismissing the writ of review, and rendering a judgment against said plaintiff for the costs of said proceeding, to the supreme court of the state of Oregon, and from the whole of said judgment and decision. H.K. HANNA and C.W. KAHLER, Attorneys for Plaintiff."

H.K Hanna and C.W. Kahler, for appellant.

Wm. M Colvig and Wm. H. Parker, for respondent.

STRAHAN, C.J., (after stating the facts as above.)

Upon the argument in this court, counsel for the respondent objected to the consideration of any of the supposed errors in the record because the same were not assigned in the notice of appeal. Section 537, Hill's Code, among other things provides, in case the judgment be one rendered in an action at law, the notice of appeal shall specify with reasonable certainty the grounds of error upon which the appellant intends to rely on the appeal; and section 544 authorizes this court to affirm, reverse, or modify the judgment or decree appealed from in the respect mentioned in the notice and not otherwise. These provisions of the Code, according to the plain import of the language, require that in an action at law the notice of appeal to this court must specify the grounds of error upon which the appellant intends to rely and such has generally been the interpretation placed upon them by this court. Dolph v. Nickum, 2 Or. 202; Fulton v. Earhart, 4 Or. 61; Lewis v. Lewis Id. 209; Williams v. Gallick, 11 Or. 337, 3 P. 469; Krewson v. Purdom, 13 Or. 563, 11 P. 281. But an exception to this rule was stated and recognized in this court for the first time in McKay v. Freeman, 6 Or. 449. In that case the court sai...