Columbia Auto Works, Inc. v. Yates

• Decision Date: 20 March 1945
• Citation: 176 Or. 295,156 P.2d 561
• Parties: COLUMBIA AUTO WORKS, INC., <I>v.</I> YATES
• Court: Oregon Supreme Court

176 Or. 295

156 P.2d 561

COLUMBIA AUTO WORKS, INC.,v.

YATES

Supreme Court of Oregon.

Argued February 13, 1945.

Affirmed March 20, 1945.

Rehearing denied April 3, 1945.

Appeal and error

1. Generally, an order refusing to vacate an appealable order, judgment, or decree is not appealable.

Appeal and error

2. The fact that statute providing that certain procedural statutes pertaining to justice courts are applicable to district courts does not include a reference to statute by terms of which 30 days is fixed as time within which an appeal can be taken from justice court to circuit court does not require the substitution of the period of time prescribed for appealing to Supreme Court as the statutory time for appealing from the district to the circuit court, so that 30 days is the time within which an appeal can be taken from district to the circuit court.

Appeal and error

3. Where judgment of foreclosure of mechanic's lien by district court was entered on April 9, 1942, and notice of appeal to circuit court was not filed until May 25, 1942, notice of appeal, not having been filed within 30 days, was not filed in time to confer jurisdiction of the appeal upon circuit court.

Appeal and error

4. Where defendant's appeal from judgment of district court was dismissed, circuit court under statute properly entered judgment against defendant as given in district court.

Appeal and error

5. In determining whether a judgment is void as distinguished from being merely erroneous, Supreme Court is controlled by record as disclosed by judgment roll.

Pleading

6. A defect in verification of plaintiff's complaint in suit to foreclose mechanic's lien, if any, was a mere irregularity which was waived by filing an answer.

Pleading

7. Where defendant's attack on complaint upon ground that it contained conclusions of law rather than allegations of probative facts was directed at that part of complaint which defendant in his answer thereafter expressly admitted, complaint was not fatally defective.

Pleading

8. Where complaint seeking to foreclose mechanic's lien failed to allege that when sheriff took possession of automobile he

delivered to person having possession thereof a certified copy of the notice of lien together with an itemized bill of particulars, failure to tender that issue by specific allegations in complaint was at most a mere irregularity which defendant waived by filing an answer and going to trial upon merits.

Appeal and error

9. Where district court had jurisdiction of person of defendant in suit to foreclose mechanic's lien on automobile, and amount claimed for such lien did not exceed jurisdiction of district court, decree of foreclosure was not void, as distinguished from being merely erroneous, so as to authorize appeal from order denying motion to vacate decree as an exception to general rule.

Appeal and error

10. Where circuit court employed form of order prescribed by statute in dismissing defendant's appeal from district court, form of the order could not be relied upon to establish defendant's right to appeal from order denying motion to vacate decree as an exception to general rule.

Appeal and error

11. Jurisdiction is conferred upon Supreme Court only by constitutional or statutory authority and not by any mere form of an order employed by some other court.

                  See 2 Am. Jur. 904
                  4 C.J.S., Appeal and Error, § 130
                

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Suit by Columbia Auto Works, Inc., against Charles S. Yates, to foreclose a mechanic's lien upon defendant's automobile. From an order of the circuit court dismissing an appeal from an order of the district court denying a motion to vacate and set aside the judgment and decree of foreclosure, the defendant appeals.

AFFIRMED. REHEARING DENIED.

Charles S. Yates, of Portland, in pro. per.

David H. Fertig, of Portland (Myer C. Rubin, of Portland, on the brief), for respondent.

KELLY, J.

One of the two major questions presented by this appeal is whether the order of the district court denying defendant's motion to vacate the judgment and decree of foreclosure is an appealable order.

1. The solution of this question lies in determining whether this case comes within either of two purported exceptions to the general rule that an order refusing to vacate an appealable order, judgment or decree is not an appealable order.

One of those exceptions which defendant invokes is that where the original judgment order or decree is void an appeal will lie from an order refusing to vacate it.

The other exception invoked here is one that applies to a case where unless an appeal is permitted from the order refusing to vacate the original judgment, order or decree, the litigant will be deprived of a substantial right which could not be disclosed or presented to the appellate court by an appeal from the judgment or decree.

2. The other major question arises because defendant contends that the time for appealing from the original judgment and decree of the district court to the circuit court had not elapsed when service of his notice of appeal was accepted and said notice was filed.

This last mentioned contention is based upon the argument that because the act of the legislature, providing that certain procedural statutes pertaining to justice courts were and are applicable to district courts, did not include a reference to the provision of the code of civil procedure by the terms of which the period of thirty days is fixed as the time within which an appeal may be taken to the circuit court, this last above mentioned provision was repealed and the period of time expressly prescribed for appealing to the supreme court, namely, sixty days after the entry of the judgment order or decree appealed from was thereby substituted as the statutory time for appealing to the circuit court.

Defendant's notice of appeal to the circuit court having been filed less than sixty days after the entry of the original judgment and decree of the district court, defendant, upon the argument, just stated, contends that seasonably he took appeal from such original judgment and decree.

The record discloses that on the 22nd day of December, 1941, plaintiff instituted a suit in the district court of Multnomah County to foreclose a mechanic's lien upon defendant's automobile. Seasonably, defendant filed an answer to plaintiff's complaint and plaintiff replied to defendant's answer.

Upon the issues thus joined, a trial was had, and, upon April 9, 1942, a judgment in favor of plaintiff and against defendant was awarded and a decree in favor of plaintiff was rendered foreclosing plaintiff's lien and ordering the sale of defendant's automobile.

On April 17, 1942, defendant filed a motion, which, omitting the title and subscription, is as follows:

"Comes now the defendant `In Personam' and moves the Court as follows:

I

Moves the Court for an order setting aside and vacating the decree heretofore entered in the above entitled suit and the entry of judgment of dismissal of plaintiff's complaint, on the ground, that it appears from the pleadings, that the Court has not jurisdiction on the subject of the suit, and on the further ground that the facts stated in the pleadings of the plaintiff do not constitute a cause of suit; that neither of said objections have heretofore been taken herein by demurrer or answer.

II

1. Defendant further moves the Court for an order recalling and quashing the execution issued herein on April 9, 1942, and

2. For an order directing the sheriff of Multnomah County, Oregon to stay said execution and postpone the sale of defendant's property under said execution, set to be held on Tuesday the 21st day of April 1942, until the further order of this Court.

The affidavits hereto attached are made a part and portion hereof."

Attached to said motion were two affidavits, one by Don Breakey to the effect that the Coast Finance Company was the owner and holder of a chattel mortgage upon defendant's automobile; that prior to the commencement of this suit there appeared upon the records in the office of the secretary of state such a lien in favor of said Coast Finance Company; that said chattel mortgage still remains unpaid; that no lien notice was mailed to the Coast Finance Company and that said Coast Finance Company was not made a party to plaintiff's suit nor served with any process of said foreclosure suit.

The other affidavit attached to said motion was made by defendant to the effect that he was the owner of the automobile in suit; that the sheriff of Multnomah County took possession of it on or about November 28 1941, and that no copy of "Notice of Lien Upon Chattels", set forth as Exhibit A in plaintiff's complaint, was ever mailed by plaintiff or received by defendant.

On the 20th of April, 1942, an order was made by the judge of the district court directing the sheriff to postpone said sale to the 28th day of April, 1942, or until the further order of said court.

On May 22, 1942, an order was made by the district court denying defendant's motion to set aside the decree and quash said execution, which order also vacated the order postponing the sale upon execution.

Defendant's notice of appeal to the circuit court was filed on May 25, 1942, service thereof upon plaintiff on said day being accepted.

Defendant argues that because by subdivision (a) of section 13-304, O.C.L.A., sections 28-303, 28-310, 28-326, 28-332 and 28-333, O.C.L.A., and the provisions concerning witness fees, costs and disbursements in justice courts are made applicable to district courts, and the provision in section 10-803, O.C.L.A., to the effect that, unless notice of appeal is given when the judgment, order or decree is entered, an appeal to the circuit court must be taken within thirty days after the entry of the judgment, order...