Custom Harvesting Oregon, Inc. v. Smith Truck & Tractor, Inc., 80-4-377

• Decision Date: 10 October 1983
• Docket Number: No. 80-4-377,80-4-377
• Citation: 66 Or.App. 127,672 P.2d 1364
• Parties: CUSTOM HARVESTING OREGON, INC., a corporation, Respondent-Cross-Appellant, v. SMITH TRUCK & TRACTOR, INC., a corporation, and Allis-Chalmers Corporation, a corporation, Appellants-Cross-Respondents. ; A29526. . On Respondent-Cross-Appellant's Motion to Dismiss Appeal
• Court: Oregon Court of Appeals

Page 1364

672 P.2d 1364

66 Or.App. 127

CUSTOM HARVESTING OREGON, INC., a corporation, Respondent-Cross-Appellant, v. SMITH TRUCK & TRACTOR, INC., a corporation, and Allis-Chalmers Corporation, a corporation,

Appellants-Cross-Respondents.

No. 80-4-377; A29526.

Court of Appeals of Oregon.

On Respondent-Cross-Appellant's Motion

to Dismiss Appeal Oct. 10, 1983.

Decided Dec. 7, 1983.

Reconsideration Denied Jan. 6, 1984.

Michael B. Collins, Pendleton, for the motion.

Kathleen A. Dodds, John P. Davenport and Sussman, Shank, Wapnick, Caplan & Stiles, Portland, contra.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

PER CURIAM

This matter is before us on plaintiff's motion to dismiss the appeal. We allow the motion.

Defendants filed the notice of appeal within 30 days after the trial court denied their motions for judgment notwithstanding the verdict and for a new trial. ORS 19.026(2)(a). They designated "the record in addition to the trial court file in its entirety." They caused the notice of appeal to be served on two of the three court reporters who reported the trial. ORS 19.023(2)(c). The third reporter was not served until 40 days after the denial of defendants' motions.

ORS 19.033(2) provides:

"The serving 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."

Defendants' failure timely to serve the notice of appeal on a court reporter who, in defendants' words, "reported the last several days of the trial" deprives this court of jurisdiction. McQuary v. Bel Air Convalescent Home, Inc., 64 Or.App. 528, 669 P.2d 348, rev. allowed 296 Or. 56, 672 P.2d 1192 (November 15, 1983).

The dissent recites the fact that plaintiff has not claimed to be prejudiced, as though that makes a difference. "It is our obligation, whether or not any objection to our jurisdiction is raised by the parties, to refuse to proceed where jurisdiction is lacking." In re Oregon Mass Transp. Fin. Auth., 284 Or. 241, 586 P.2d 784 (1978). ¹

The dissent, decrying a "hard line" on these unambiguous statutes, would rewrite them to provide no line at all. That is not our business, and we decline to do it.

Plaintiffs cross-appealed. Because we dismiss the appeal and because the notice of cross-appeal was not filed within the time allowed for filing a notice of appeal, we dismiss the cross-appeal on our own motion.

Appeal dismissed; cross-appeal dismissed.

VAN HOOMISSEN, Judge, dissenting.

I respectfully dissent, because I find that this harsh result is not mandated by ORS 19.023(2)(c) or ORS 19.033 and because there is no compelling reason for this court to take such a hard line in this case. The result is simply unjust.

Defendants' attorneys maintain their offices in Portland. The case was tried in Pendleton. Defendants' notice of appeal was timely filed. Copies were served on the trial court clerk, on plaintiff's attorney and on two court reporters. Later, one of defendants' attorneys assigned to the appeal learned that a third reporter had participated in the trial. That reporter was promptly served. However, that service was ten days after the appeal time had expired. Plaintiff makes no claim of prejudice. The majority concludes that failure timely to serve the third reporter deprives this court of jurisdiction. I disagree.

Three reporters were involved in the trial, Bunker, Frank and Park, the "official" trial court reporter. Defendants' attorneys served Bunker and Frank. They did not serve Park. The affidavit of one of defendants' attorneys states that, in the course of preparing this appeal, she called the trial court administrator's office in Pendleton to ascertain the names of the court reporters who had participated in the lengthy trial and that she was informed that the reporters were Bunker and Frank. ¹ Her affidavit further states that she learned later from Bunker that Park had reported the last part of the trial. Park was served promptly. When the attorney called the trial court administrator's office to discuss the misinformation she had been given

"[t]he employee told me that the probable reason why I was not told that Joni Park was one of the reporters was because Ms. Park had been out with an injured hand for most of this trial. Ms. Bunker had been called in to replace Ms. Park, and when Ms. Bunker became ill, Mr. Frank had been called in." ²

I see no compelling reason to interpret the requirements of ORS 19.023(2)(c) so strictly. That statute only requires that the trial court "reporter" be served. Nothing in the statute's legislative history indicates any legislative intent to deny a party appellate review on the facts found here. ³ On the contrary, an abundance of legislative history supports a conclusion that appellate procedure should be simple and flexible. See Pohrman v. Klamath Co. Comm., 272 Or. 390, 392, 538 P.2d 70 (1975) (inflexibility in appellate procedure basis for reform); Gordon Creek Tree Farms v. Layne et al., 230 Or. 204, 210, 358 P.2d 1062, 368 P.2d 737 (1962) (procedural sins of attorneys should not necessarily be visited on their clients).

Litigation is more complex today. It is not unusual for there to be several reporters involved in a lengthy case. The thought that a parties' right to appellate review could be lost simply because an attorney inadvertently failed to serve one of several reporters when no prejudice is claimed shocks my conscience. As a former trial judge, I recall the confusion caused by the multitude of "pro-tem" reporters that worked in my courtroom. Many of them worked only part time for judges. The rest of the time they freelanced. A young and highly mobile group, they moved frequently about the state, and it was not uncommon for one of them to leave the state entirely. Keeping track of their whereabouts was a major chore.

The result here is arguably correct, because defendants' attorneys failed to serve Park, the "official" trial court reporter. That is not the basis on which the majority reaches its conclusion, however.

I am disturbed by the path this court is following. See, e.g., Bauman v. Gittlesohn, 64 Or.App. 849, 669 P.2d 1188 (1983). I agree with Judge Warren's dissent in Bauman, 64 Or.App. at 850, 669 P.2d 1188. I have no quarrel with McQuary v. Bel Air Convalescent Home, Inc., 64 Or.App. 528, 669 P.2d 348, rev. allowed --- Or. ---, --- P.2d ---- (November 15, 1983). There, the appellant failed to serve either of the two court reporters in the case and the trial court clerk. That case is obviously distinguishable. In Burnam v. Garon Development Corporation, 64 Or.App. 847, 669 P.2d 1186 (1983), the appeal was dismissed because it was not from a final judgment. See ORS 19.010(2)(e). Apparently, it also would have been dismissed for failure to serve the trial court clerk. (The county clerk who was served was not the trial court clerk). ⁴

There is simply no compelling reason for us to take a hard line here. The language of the statute is not clear or unambiguous. Therefore, we should construe the statute in a common-sense, real-world manner. Unless clearly required to do so, we should not visit "the procedural...