Libby v. Southern P. Co.

• Decision Date: 16 October 1923
• Citation: 219 P. 604,109 Or. 449
• Parties: LIBBY v. SOUTHERN PAC. CO. [*]
• Court: Oregon Supreme Court

219 P. 604

109 Or. 449

LIBBY v. SOUTHERN PAC. CO. ^[*]

Supreme Court of Oregon

October 16, 1923

In Banc.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Action by Grace Libby, administratrix of the estate of A. C. Libby deceased, against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. On motion to dismiss appeal. Appeal dismissed.

Ben C. Dey, Dey, Hampson & Nelson, and C.J. Young all of Portland, and Smith & Shields, of Salem, for appellant.

W. C Winslow, of Salem, for respondent.

BURNETT J.

The plaintiff has moved to dismiss the defendant's appeal. A chronology of the events involved is as follows:

In the action to recover $250 as damages for the demolition of a truck belonging to the plaintiff's intestate, by one of the defendant's trains, the plaintiff recovered judgment for that amount on April 6, 1923. On May 9, following, the defendant served and filed its notice of appeal to the Supreme Court. On the 17th of the same month the undertaking on appeal was served and filed. No objections to the sufficiency of the surety were ever filed. Chapter 153 of the General Laws of Oregon for 1923, amendatory of section 548, Or. L., was passed and approved by the Governor February 21, 1923, without an emergency clause. The legislative assembly which passed the act adjourned February 22, 1923. This law became effective on and after 90 days from the end of the session at which the same was passed, or, in this instance, on May 24, 1923. The amended section reads thus:

"Sec. 548. A judgment or decree may be reviewed on appeal 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 an interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition, 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 on appeal, shall be deemed a judgment or decree, but no appeal to the Supreme Court shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings in the case that the amount in controversy exceeds $250."

The amount in controversy in this action is $250, and not in excess thereof. This is settled by the amount of the judgment demanded in the complaint. Troy v. Hallgarth, 35 Or. 162, 57 P. 374; Ferguson v. Byers, 40 Or. 468, 67 P. 1115, 69 P. 32. The plaintiff contends for $250. The defendant controverts this demand, and hence that is the amount in controversy.

The doctrine of the cases is that no act will be held to have a retrospective effect, unless the intention in that respect is clearly apparent in the statute itself. On the contrary, if it is fairly possible to restrain the operation of the statute so as to be prospective, that course will be adopted by the courts. Wist v. Grand Lodge, 22 Or. 271, 29 P. 610, 29 Am. St. Rep. 603; Smith v. Kelly, 24 Or. 464, 473, 33 P. 642; Portland v. Cook, 48 Or. 550, 87 P. 772, 9 L. R. A. (N. S.) 733; Drainage District v. Bernards, 89 Or. 531, 174 P. 1167. Giving this statute prospective effect, we come to the consideration of the clause:

"An appeal to the Supreme Court * * * shall be taken by serving and filing the notice of appeal, within sixty (60) days from the entry of the judgment, order or decree appealed from or to the circuit court within thirty (30) days after such entry and not otherwise." Or. L. § 550.

This definition does not include the matter of perfecting an appeal. That depends upon the filing of an undertaking and the waiver or overruling of objections to the sufficiency of the sureties on the undertaking. The appeal in question, in which the notice of appeal was served and filed May 9, 1923, was "taken" before the statute took effect, and, so far as mere taking the appeal is concerned, defendant was well within its rights, and, if this were the sole question, the appeal should stand for hearing. The word "allowed," however, is an additional element in the enactment, and must have consideration. So far as appeals to the Supreme Court are concerned, this word does not have reference to permission to be granted by some officer or court.

"Under some statutes, either generally or in specified cases, even when an appeal is a matter of right in the cases and under the conditions prescribed by the statute, the appellant must, as a condition precedent, apply for and obtain an order allowing the appeal, while under other statutes an appeal may be taken as a matter of right and without such allowance, either generally or in particular cases." 3 C.J. 1078.

Under our statutes, appeal to the circuit and Supreme Courts in proper cases as defined by the laws is a matter of right, without reference to permission to be granted by any officer or court. Moore v. Randolph, 52 Ala. 530; Nesbit v. Rodewald, 43 Miss. 304; Gove v. Gove, 87 Vt. 468, 89 A. 868. The meaning of "allowed," in this enactment is that the law forbids and will not permit an appeal in the cases described in the last clause of the amended section. The question is whether the law affects the case made by the mere taking of the appeal before the statute went into effect.

We have seen that the appeal was taken before the amendment went into operation. Confessedly the statute took effect on May 24. The transcript, bill of exceptions, testimony, and exhibits were filed in this court July 27, 1923. The plaintiff's abstract was filed August 14, 1923. Section 550, Or. L., prescribes how an appeal shall be taken and perfected, and says that:

"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."

Although the serving and filing the notice of appeal and giving the undertaking on appeal are essential steps towards the ultimate end of conferring jurisdiction upon the Supreme Court, yet that jurisdiction does not depend solely or sufficiently upon those preliminary steps. Indeed, section 550 does not profess to confer jurisdiction. That is reserved for section 554, Or. L., which reads thus in part:

"Upon the appeal being perfected the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the law or rules of the appellate court may require of so much of the record as may be necessary to intelligibly present the question to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; * * * and after compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise. * * *"

Further provision of the same section permits the trial court or judge thereof, or this court or a justice thereof, to enlarge the time for filing the transcript or abstract, with the express requisite that the order shall be made within the time allowed to file the transcript, and shall not extend it beyond the term of the appellate court next following the appeal.

According to the transcript on file herein, no order enlarging the time within which to file the same was made until July 13, 1923. The appeal was perfected with the expiration of May 23, 1923; no objection having been filed to the sufficiency of the undertaking lodged with the circuit court on May 17. Normally the time for filing the transcript in this court would expire June 24. The order of July 13 enlarging the time to file the transcript was therefore too late, because not made within the time allowed by the statute within which the transcript must be filed. It is true this order was made by the circuit judge in pursuance of a stipulation signed by the parties, but it has been uniformly held that jurisdiction cannot be conferred by consent.

Even giving the statute only prospective effect, it must be held to apply to all the essentials yet to be performed after the act goes into force. This is manifest because of the prescriptive phrase relating to the filing of transcript. The statute says "the appellant shall" file with the clerk of the appellate court the transcript within 30 days after the perfection of the appeal, and the clause concludes with this further mandatory language:

"And after compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise."

In Railroad Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231, an appeal had been taken and was actually pending for hearing in the Supreme Court of the United States in a case where the matter in dispute was of the value of $2,250. At this stage of the proceedings Congress enacted a law to the effect that a judgment or decree of the Supreme Court of the District of Columbia might be reexamined "where the matter of dispute exceeds the value of $2,500." After discussing the situation, Mr. Chief Justice Waite said:

"It is equally well settled that, if a law conferring jurisdiction is repealed without any reservation as to pending cases all such cases fall with the law. * * * The act of 1879 is undoubtedly prospective in its operation. It does not vacate or annul what has been done under the old law. It destroys no vested rights. It does not set aside any judgment already rendered by this court under the jurisdiction conferred by the Revised Statutes when in force. But a party to a suit has no vested right to an appeal or a writ of error from one court to another. Such a

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