Hollinger v. Blair

• Decision Date: 26 September 1974
• Citation: 526 P.2d 1015,270 Or. 46
• Parties: William G. HOLLINGER and Mae G. Hollinger, Appellants, v. Wayne H. BLAIR, Judge of the District Court for Klamath County, Oregon, Respondent. William G. HOLLINGER and Mae G. Hollinger, Appellants, v. Arthur R. DICKSON and Viola V. Dickson, Respondents.
• Court: Oregon Supreme Court

Page 1015

526 P.2d 1015

270 Or. 46

William G. HOLLINGER and Mae G. Hollinger, Appellants, v. Wayne H. BLAIR, Judge of the District Court for Klamath

County, Oregon, Respondent.

William G. HOLLINGER and Mae G. Hollinger, Appellants, v. Arthur R. DICKSON and Viola V. Dickson, Respondents.

Supreme Court of Oregon.

Argued and Submitted Sept. 6, 1974.

Decided Sept. 26, 1974.

Glenn D. Ramirez, Klamath Falls, argued the cause for appellants. With him on the briefs were Ramirez & Hoots, Klamath Falls.

Stuart E. Foster, Medford, argued the cause for respondents. With him on the brief were Frohnmayer & Deatherage, Medford.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, BRYSON ^* and SLOPER, JJ.

TONGUE, Justice.

These consolidated appeals both involve a previous appeal to the Circuit Court for Klamath County from a judgment of the District Court of that county against plaintiffs and in favor of defendants Dickson in the sum of $1,365. ¹ After that appeal to the circuit court had been perfected by the filing of an undertaking and transcript, it was dismissed by that court on January 3, 1972, for want of prosecution.

On September 20, 1973, a transcript of the previous judgment of the district court was filed and docketed in the judgment docket of the circuit court under the provisions of ORS 46.274. Plaintiffs filed in the district court a motion to set aside the docketing of that judgment, which was denied. Plaintiffs then filed in the circuit court a petition for review in which it was alleged that 'the said District Court has no jurisdiction in the case, and the case having been dismissed by the Circuit Court, there is no authority for perpetuation of the judgment * * *.'

A motion by defendants to quash that petition for review was granted. On the same date the circuit court entered a further and separate judgment in the sum of $1,365 against both plaintiffs and the sureties, after reciting that the previous appeal had been dismissed.

Plaintiffs appeal from that judgment by the circuit court. Plaintiffs also appeal from the order of the circuit court in the separate proceedings arising from plaintiffs' petition for review, in which that court refused to set aside the docketing of the judgment of the district court.

Plaintiffs contend that by the terms of ORS 53.110 the entry by the circuit court of judgment against both the appellants and the sureties on their undertaking on appeal is limited to cases in which appeals from the district court to the circuit court have been dismissed as 'not properly take and prefected.' Thus, it is contended that because the appeal to the circuit court in this case was properly taken and perfected and was subsequently dismissed for want of prosecution the provisions of ORS 53.110 for the entry of such a judgment have no application. Plaintiffs cite no authorities in support of this contention and the only case cited by defendants to the contrary is Simpson v. Prather, 5 Or. 86 (1873).

It is also contended by plaintiffs that upon the appeal to the circuit court of the judgment of the district court and the perfection of that appeal by filing with the clerk of the circuit court a transcript of the proceedings in the district court, the action was then to 'be deemed pending and for trial (in the circuit court) as if originally commenced in such court,' with jurisdiction to 'try it anew,' as provided by ORS 53.090, and that upon the dismissal of such a previously perfected appeal the action itself was terminated, including any power of the circuit court to enter judgment under ORS 53.110. For the same reasons, plaintiffs contend that the previous judgment of the district court was nullified and could no longer be docketed in the circuit court.

ORS 53.110 provides as follows:

'The appellate court may dismiss an appeal from a justice's court If it is not properly taken and perfected. When An appeal is dismissed the appellate court must give judgment as it was given in the court below, and against the appellant for the costs and disbursements of the appeal. When judgment is given in the appellate court against the appellant, either with or without the trial of the action, it must also be given against the sureties in his undertaking, according to its nature and effect.' (Emphasis added)

The history of this statute and its predecessor, as construed and applied by this court, is of interest in arriving at a proper application of ORS 53.110 to the facts of this case.

In Simpson v. Prather, Supra, an appeal from a justice court to a circuit court was dismissed after six months of inaction by the appellant upon the ground that it had been 'abandoned,' following which judgment was entered by the circuit court against the defendant and the sureties on their undertaking on appeal. This court affirmed the entry of that judgment over the protest by one of the sureties, saying (5 Or. at 88) that:

'* * * The respondent claims that the dismissal of the appeal operated as an affirmance of the judgment. As that fact is supplemented by the allegation of the further facts that the time for taking the appeal had fully elapsed and that the same had been abandoned, we are of opinion that the dismissal operated as an affirmance of the judgment of the court below. * * *'

At that time what is now ORS 53.110 had not been adopted in its present form. It was expressly provided by the previous statute, however, that 'if the appeal be abandoned as provided in subdivision 3 of this section' (i.e., by failure to file a transcript of the proceedings in the justice court within the time required by statute), the original judgment or decree could be enforced 'against the sureties in the undertaking for a stay of proceedings, as if they were parties to such judgment or decree.' Deady and Lane, General Laws of Oregon 1843--72, ch. 6, § 531(4). No reference to that statute was made in Simpson v. Prather, Supra. Neither does it appear from the opinion in that case whether or not the appeal from the justice court had been 'abandoned' by the failure to file in the circuit court a transcript of the proceedings in the justice court.

In Nurse v. Justus, 6 Or. 75 (1876), although under different facts, this court considered the provisions of the statutes then in effect for appeals from justice courts to circuit courts, including other provisions similar to those of the present ORS 53.090 (cf. Deady and Lane, General Laws of Oregon 1843--72, ch. 6, § 536(3)), and said (6 Or. at 76) that such an appeal '* * * is not a new action, but simply a retrial of an action in an appellate tribunal for the purpose, theoretically, of correcting errors of the inferior court. * * *'

Four years later, in State of Oregon v. McKinnon, 8 Or. 485 (1880), this court again considered the provisions of the same statutes and held that when an attempted appeal is defective, the appellate court has no other jurisdiction over the case than to dismiss it without affirming the judgment appealed from. In so holding this court said (8 Or. at 486):

'We have examined the authorities cited by the respondent carefully, and find no case among them where it has been held that an order dismissing an appeal for jurisdictional defects amounted to an affirmance of the judgment appealed from, and terminated a party's right to take another appeal within the time fixed by law. They seem to have been cases where the appeal had been perfected, and jurisdiction acquired by the appellate courts, but their prosecution had been abandoned by appellants. (Simpson v. Prather, 5 Or. 86, and cases there cited.)'

In Whipple v. S.P. Co., 34 Or. 370, 55 P. 975 (1899), this court again held, and again under different facts, that when an appeal from a justice court was dismissed the only judgment that could be rendered was to dismiss the appeal, citing State of Oregon v. McKinnon, Supra, among other cases holding to the same effect. Shortly after that decision, however, what is now ORS 53.110 was enacted. Oregon Laws 1899, § 49, p. 118.

In Russell v. Smith, 96 Or. 629, 630, 190 P. 715 (1920), it was held under that statute that if such an appeal is dismissed for failure to file the transcript within the specified time, 'upon such dismissal the judgment may be enforced by the appellate court against the appellant and his sureties.'

In Currier v. Anderson, 136 Or. 440, 299 P. 704 (1931), another case in which an appeal from a justice court had also not been properly perfected by the timely filing of a transcript, this court pointed out that the statute had been amended since its earlier decision in Whipple v. S.P. Co., Supra, and said (136 Or. at 442--444, 299 P. at 705) that:

'The authority to enter a judgment on the dismissal of appeals from a justice of peace court depends upon the statute. The statutes of many states expressly provide for an entry of such judgment where the appeal is dismissed, as well as on affirmance of the justice's judgment. By signing an undertaking on appeal, the sureties submit themselves to the jurisdiction of the appellate court: 35 C.J. 892, §§ 684, 686 and notes.

'It was evidently the legislative intent, in the enactment of section 16--411, Oregon Code 1930, to provide where a judgment was rendered after trial of the issues raised in a justice's court and the defeated party appeals to the circuit court and gives an undertaking for a stay of proceedings, that upon the dismissal of the appeal, Where t is not properly taken and perfected, the sureties upon the undertaking are responsible for the payment of the judgment entered in the appellate court. The statute practically adopts the rule prevailing in this court under section 7--507, subd. 3, Oregon Code 1930, (see Russell v. Smith, 96 Or. 629, 190 P. 715), and provides that the party against whom judgment is rendered in the justice's court shall not be permitted, By defective proceedings for an appeal, to stay the proceedings until a subsequent term of the circuit court, and...