Logsdon, In re
| Decision Date | 29 March 1963 |
| Citation | 234 Or. 66,380 P.2d 111 |
| Parties | In the Matter of Kathleen Elaine LOGSDON. In the Matter of Howard Eugene LOGSDON. Elza LOGSDON and Florence Logsdon, his wife, Appellants, v. STATE of Oregon, Respondent, and Robert M. Dell and Theresa E. Dell, his wife, and Mr. and Mrs. Chester Coxen, Intervenors-Respondents. |
| Court | Oregon Supreme Court |
Karl T. Huston, Corvallis, argued the cause for appellants. On the briefs were Huston, Thomas & Johnson, Corvallis.
A. R. McMullen, Dist. Atty., and Eugene K. Richardson, Newport, argued the cause and submitted a brief for respondents.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and DENECKE, JJ.
This is a contest over the custody of two children, Howard Logsdon and his sister, Kathleen, whose parents were both killed in an airplane crash. The paternal grandparents appeal from a decree of the circuit court for Lincoln county awarding custody to a maternal aunt.
The Logsdons resided at Newport in Lincoln county, and both parents were killed on June 25, 1961. The boy, Howard, was then seven years old, and his sister, Kathleen, six years old. The paternal grandparents, Elza and Florence Logsdon, who resided in Iowa, came to Newport immediately after the death of their son and daughter-in-law. The record discloses that on June 29, 1961 the grandparents had physical custody of the children at the home of one Harold Mosier in Newport.
On June 29, 1961, Dorothy C. Majors, the Director of the Juvenile Department for Lincoln county filed in the county court of that county a petition alleging that Howard Logsdon was----
'* * * a child within the jurisdiction of the Juvenile Court by reason of both parents having met accidental death and by reason of the child having need of the care, guidance and protection necessary for his physical, mental or emotional well-being; and that Waneta Ellen Logsdon, mother of said child is deceased and that Jerry Eldon Logsdon, father of said child is deceased, and that Mr. and Mrs. Elvy Logsdon, grandparents of said child, have physical custody of said child, in the home of Harold Mosier, 1920 N. Coast Highway, Newport, Oregon.'
A like petition was filed as to Kathleen Logsdon.
On the same day the county judge, pursuant to ORS 419.482(3) entered orders placing the children in the temporary custody of the juvenile court, and caused notice to be given to the interested relatives of a hearing to be held the following day.
On the following day, June 30, 1961, the county court held a hearing and on July 3, 1961 entered an order making both children wards of the court, placing them in the temporary custody of a maternal aunt, Mrs. Chester Coxen, and her husband, and continuing the hearing of the matter until further order of the court.
Notice was given of a further hearing to be held on August 15, 1961, but the record indicates that the hearing was not held. On August 21, 1961 an order was entered continuing the hearing until further order of the court. This order seems to have been the last action taken by the county court.
On September 8, 1961 the grandparents filed a notice of appeal from the county court to the circuit court for Lincoln county, appealing from----
'* * * that certain oral order made by Mike Miller, Judge of said juvenile court, on August 15, 1961 continuing the custody of said Kathleen Elaine Logsdon in Mr. and Mrs. Chester Coxen of Route 1, Box 251, Toledo, Oregon, and from the written order made by said Mike Miller, Judge of the juvenile court, on August 21, 1961 continuing the hearing on the petition filed in the above proceeding.'
A like notice of appeal was filed in the Howard Logsdon case.
On January 29, 1962 the matters came on for hearing in the circuit court for Lincoln county. At that time the parties stipulated concerning the jurisdiction of the court as follows:
'MR. HUSTON: It is stipulated and agreed that any objections as to the manner of appeal will be waived and that we will admit the jurisdiction of the Circuit Court of the State of Oregon for the County of Lincoln, sitting as a juvenile court, to hear and determine the matter of the custody of Kathleen Elaine Logsdon and Howard Eugene Logsdon, and that Mr. Richardson may put on evidence and cross examine as a representative of the Dells and the Coxens intervening herein. Does that do it?
'MR. McMULLEN: I have just one question, Mr. Huston, you said 'The Circuit Court sitting as a juvenile court'; it's sitting as an appellate court, it's tried de novo by reason of the appeal.
'MR. McMULLEN: So stipulated by the State.'
It was further stipulated that the two cases should be consolidated for trial.
On February 13, 1962 the circuit court entered a decree awarding custody of both children to Theresa E. Dell, a maternal aunt of the children, and Robert M. Dell, her husband. From that decree the grandparents appeal.
Reluctantly we have reached the conclusion that this case must be reversed on procedural grounds. At the outset it clearly appears that the appeal from the county court to the circuit court was taken from a non-appealable order. Appeals from the juvenile court to the circuit court are authorized by ORS 419.561(1), 1 which allows an appeal only from 'a final order of the juvenile court.' Before the enactment of ORS 419.561 2 an appeal could be taken 'from any permanent or temporary order of the juvenile court to the circuit court.' Ch. 414, Oregon Laws 1957. A comparison of the two statutes demonstrates a clear legislative intent to permit an appeal in these cases only from a final order of the juvenile court. The right to appeal is statutory and subject to any limitations imposed by the statute conferring the right. McEwen v. McEwen, 203 Or. 460, 469, 280 P.2d 402 (1955); Inland Navigation Co. v. Chambers, 202 Or. 339, 350, 274 P.2d 104 (1954); Chebot v. State Industrial Accident Commission, 106 Or. 660, 669, 212 P. 792 (1923).
The notice of appeal from the county court in this case first refers to an oral order made by the court continuing the custody of Kathleen in Mr. and Mrs. Chester Coxen. This obviously was not an appealable order, not only because it was oral, but also because, according to the notice of appeal, it purported only to continue the temporary custody of the children as previously ordered on July 3, 1961.
The notice of appeal next refers to an order entered on August 21, 1961 continuing the hearing. That order, of course, had no semblance of finality and was certainly not appealable. So far as we can ascertain from the record no final order was ever entered by the county court.
It is not necessary to decide whether an appeal could have been taken from the order of July 3, 1961 declaring the children wards of the juvenile court, since the notice of appeal was filed more 'than 30 days after the entry of the court's order.' ORS 419.561(3).
The parties apparently entertained doubts concerning the jurisdiction of the circuit court and attempted to circumvent...
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State v. Colgrove
...The statute authorizing an appeal may include limitations on the issues that may be reviewed in an appeal. Logsdon v. State and Dell , 234 Or. 66, 70, 380 P.2d 111 (1963)."See also State v. Endsley , 214 Or. 537, 546, 331 P.2d 338 (1958) (" ‘The legislature * * * has the power to define in ......
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Dep't of Human Servs. v. C. M. H. (In re S. R. R.)
......She cites Logsdon v. State and Dell , 234 Or. 66, 71, 73, 380 P.2d 111 (1963), in which this court held that there had been a "lack of jurisdiction" to support the juvenile court's wardship determination because there had been a lack of " allegation [ ]or proof of neglect or other facts to authorize" the juvenile ......
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State v. Nix
...The statute authorizing an appeal may include limitations on the issues that may be reviewed in an appeal. Logsdon v. State and Dell, 234 Or. 66, 70, 380 P.2d 111 (1963). In that regard, it is worth emphasizing that, although the terms are sometimes inadvertently used interchangeably,2 “app......
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State v. Snyder
...imposed by the statute conferring the right. State v. Adams, 315 Or. 359, 364, 847 P.2d 397 (1993) (citing Logsdon v. State and Dell, 234 Or. 66, 70, 380 P.2d 111 (1963)); Ragnone v. Portland School District No. 1J, 289 Or. 339, 341 n. 1, 613 P.2d 1052 (1980). ORS 2.520 confers jurisdiction......