Hartman v. Hartman

• Decision Date: 16 March 1970
• Parties: Calvin S. HARTMAN, Appellant, v. Kathleen L. HARTMAN, Respondent. . Argued and Submitted on Respondent's Motion to Dismiss
• Court: Oregon Court of Appeals

Page 551

468 P.2d 551

2 Or.App. 335

Calvin S. HARTMAN, Appellant, v. Kathleen L. HARTMAN, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted on Respondent's Motion to Dismiss March

16, 1970.

Decided April 23, 1970.

Robert G. Danielson, Sweet Home, argued the motion for respondent.

M. M. Orona, Lebanan, argued contra for appellant.

Before SCHWAB, C.J., and FORT and BRANCHFIELD, JJ.

BRANCHFIELD, Judge.

This case is before the court on a motion by the respondent, the defendant in the divorce proceedings below, to dismiss the appeal for the reason that the notice of appeal lacked endorsement of proof of service.

ORS 19.023(2) provides:

'A party to a judgment desiring to appeal therefrom, or some specified part thereof, shall cause a notice, signed by himself or his attorney, to be served on such adverse party or parties as have appeared in the action, suit or proceeding and file the original, With proof of service indorsed thereon or affixed thereto, with the clerk.' (Emphasis supplied.)

ORS 19.033(2) declares that:

'The serving and filing of the notice of appeal as provided in ORS 19.023 to 19.029 is jurisdictional and may not be waived or extended.'

A similar motion was made in Cooke v. Traver, 181 Or. 643, 184 P.2d 866 (1947). The pertinent statutory provision at that time was OCLA § 10--803, which also required the filing of a notice of appeal, '* * * with proof of service indorsed thereon * * *.' The court held that the requirement of the statute as to proof of service of the notice of appeal was jurisdictional. See also Knapp v. Olson, 214 Or. 206, 328 P.2d 772 (1958).

The legislature revised the statutes on appellate procedure in 1959 after Cooke and Knapp were decided. Senate Bill No. 84, recommended by the Interim Committee on Judicial Administration, was introduced in a form which would have omitted the provision making proof of service jurisdictional. However, in enacting the bill as L.1959, ch. 558, the legislature restored the previous language requiring that a notice of appeal must contain proof of service in order to confer jurisdiction.

In so enacting that bill, the legislature must have considered the previous decisions of the Supreme Court. It is clear that the legislature intended to retain proof of service as one of the jurisdictional requirements of an appeal.

Appellant has directed our attention to Gordon Creek Tree Farms v. Layne et al., 230 Or. 204, 358 P.2d 1062, 368 P.2d 737 (1962). That case concerned the statutory authority of the Supreme Court to grant...