Gearin v. Portland Ry., Light & Power Co.

• Decision Date: 11 June 1912
• Parties: GEARIN et al. v. PORTLAND RY., LIGHT & POWER CO.
• Court: Oregon Supreme Court

124 P. 256

62 Or. 162

GEARIN et al. v. PORTLAND RY., LIGHT & POWER CO.

Supreme Court of Oregon

June 11, 1912

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Hugh C. Gearin and another against the Portland Railway Light & Power Company. Judgment for defendant, and plaintiffs appeal. On motion to dismiss. Appeal dismissed.

On March 8, 1910, the jury, in the trial of this action in the circuit court, returned a verdict for the defendant, upon which judgment was rendered the same day. On March 18, 1910 whether by leave of court or otherwise does not appear, the plaintiff filed a motion for new trial on the ground of: (1) Irregularity in the procedure of the court in calling the jury into the courtroom, and instructing them as to the law in the absence of and without notice to counsel for either party; (2) insufficiency of the evidence to justify the verdict, and that it is against law; (3) error in instructing the jury as to the law in manner excepted to by the plaintiffs; and (4) error in law in the refusal of the court to instruct the jury as requested by the plaintiffs. Whether the motion was continued for want of time to hear it does not appear; but at a subsequent term, to wit, on July 2, 1910, it was argued and taken under advisement, and at a still later term of the court, on November 17, 1910, was overruled. On December 27, 1910, the plaintiffs served a paper, whereby the defendant was notified that the plaintiffs appealed "from the judgment entered on the 8th day of March 1910, and to set aside which judgment and for new trial a motion was filed in the above-entitled action in the above-entitled court on March 18, 1910, which motion was not decided by the said court until November 17, 1910, when the court denied said motion and refused plaintiffs a new trial." The undertaking for appeal was filed on the same day, and the transcript was lodged in this court January 18, 1911. The defendant moved to dismiss the appeal, for the reason that it appears from the record that the appeal had not been taken within the time and in the manner required by law, "particularly in this: That said appeal has not been taken within six months from the date of the entry of the judgment appealed from, to wit, within six months from March 8, 1910, but that, on the contrary, said appeal was not taken or perfected until December 27, 1910."

John M. Gearin, of Portland, for appellants.

F.J. Lonergan, of Portland, for respondent.

BURNETT J. (after stating the facts as above).

The chapter on appeals opens with section 548, L.O.L.: "A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree." Section 550, L. O.L., prescribes that: "An appeal shall be taken and perfected in the manner prescribed in this section, and not otherwise. ***"

After providing for giving oral notice at the time of the rendition of the judgment or afterwards by a writing, that within 10 days from giving or serving notice of appeal the appellant shall cause an understanding to be served upon the adverse party, and for filing the same with the clerk, and that within five days after notice the adverse party shall except to the sufficiency of the sureties in the undertaking, or shall be deemed to have waived his right thereto, subdivisions 4 and 5 of that section read thus: (4) "From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof, if excepted to, the appeal shall be deemed perfected. ***" (5) "An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, shall be taken by serving and filing the notice of appeal within six months from the entry of the judgment, order, or decree appealed from, *** and not otherwise." Prior to the act of February 25, 1907, a motion for new trial was filed within one day after the giving of a verdict or other decision sought to be set aside. B. & C. Comp.§ 175. The filing of a motion for new trial within the time prescribed ipso facto delayed the entry of judgment until the motion should be disposed of. B. & C. Comp. § 201. Under the former practice, therefore, the order of procedure was first the verdict, then the motion for new trial, and after that the judgment. The act of February 25, 1907, changed this, so that now we have the judgment and next a motion for new trial, to be filed within one day after the judgment, or such further time as the court may allow. L.O.L. § 175.

In the new procedure devised in 1907, the Legislative Assembly omitted all the former provision about delaying the entry of judgment until the disposition of the motion for new trial. There is nothing in the new statute giving any effect to such a motion as a suspension of the judgment or stay of proceedings or extension of the time in which an appeal may be taken; yet the essence of the contention for the plaintiffs (appellants here) is that the statute must be construed as if all such terms were therein expressed. They argue that they had the right to file a motion for new trial; that until that attack upon the judgment is defeated, or successful, they cannot know whether the judgment is to be final or not, because it is possible that the court pronouncing it may set it aside. Having arrived at this point in the discussion, founded on their want of prescience, they further urge that on account of this possibility the judgment entered is not a final order, and there can be none in the case, so long as the motion for new trial is pending. It must be conceded that if no motion for new trial had been filed the decision of the circuit court, entered of record March 8, 1910, to the effect that plaintiffs take nothing by this action, would have been and remained, so far as that court was concerned, the final determination of the rights of the parties in dispute. The law has not given to any litigant the authority to change the quality of that decision by any act of his own. It would be an anomaly if, in the absence of present legislation and the repeal of the former enactment on that subject, a suitor, by a motion which he might file, or not, in his discretion, should possess the power to change or suspend the quality of a decision of a judicial tribunal.

The recorded proceeding of the court, of March 8, 1910, was a judgment. It cannot, in the nature of things, be anything else. In that name alone it is appealable, without reference to other court transactions, enumerated as judgments in section 548, L. O.L....