Millard v. Mitchell Bros. Truck Lines
| Decision Date | 18 October 1971 |
| Citation | 261 Or. 165,492 P.2d 783 |
| Parties | James Arthur MILLARD, Jr., Appellant, v. MITCHELL BROS. TRUCK LINES, an Oregon corporation, and Rudolph Walter Thies, Respondents. |
| Court | Oregon Supreme Court |
Tooze, Powers, Kerr, Tooze & Peterson, Portland, for the motion.
Vernon Cook, Gresham, contra.
The respondents filed a motion to dismiss appellant's appeal because appellant failed to include in his notice of appeal a designation of the portions of the proceeding to be included in the record and a statement of points on which the appellant intends to rely.
Prior to September 1971, ORS 19.074 provided:
'(2) At the time of filing the notice of appeal the appellant shall serve and file:
'(a) A designation of such parts of the proceedings and exhibits as he desires to be included in the record in addition to the trial court file.
'(c) If the appellant has designated for inclusion in the record all the testimony and all the instructions given and requested, no statement of points is necessary.
'(3) Within 10 days after the filing of the designation and the statement of points, if any, any other party may serve and file a designation of additional parts of the proceedings and exhibits to be included in the record.
'(4) The reporter shall prepare a transcript of such parts of the proceedings as are designated as provided in subsections (2) and (3) of this section.'
ORS 19.029 provided:
'The notice of appeal shall contain the following:
'(1) The title of the cause.
'(2) The names of the parties and their attorneys.
'(3) A notice to the adverse party or his attorney that an appeal is taken from the judgment or some specified part thereof.'
ORS 19.023(3) provided:
'The notice shall be in the form prescribed in ORS 19.029, shall be filed within the time prescribed in ORS 19.026, and shall be accompanied by the designation required by ORS 19.074.'
We have held that these statutes do not make the filing of a notice of appeal 'accompanied by the designation required by ORS 19.074' jurisdictional. We held that we acquired jurisdiction despite the fact that the notice of appeal was not accompanied by a designation. Gordon Creek Tree Farms v. Layne, 230 Or. 204, 358 P.2d 1062, 368 P.2d 737 (1962).
Oregon Laws 1971, ch. 565, § 6, p. 993, amends ORS 19.029 to read as follows:
'(1) The notice of appeal shall contain the following:
'(a) The title of the cause.
'(b) The names of the parties and their attorneys.
'(c) A notice to the adverse party or his attorney that an appeal is taken from the judgment or some specified part thereof.
'(d) A designation of those portions of the proceedings and exhibits to be included in the record in addition to the trial court file.
'(3) The reporter shall prepare a transcript of such parts of the proceedings as are designated pursuant to paragraph (d) of subsection (1) of this section and subsection (2) ot this section.'
The amendment has eliminated the various separate documents such as designation of record, etc., and requires that all be included in the notice of appeal.
The respondents contend that because the amendments added the designation of record and a statement of points to the list of items to be included in the notice of appeal, the inclusion of the designation and statement was made jurisdictional. We hold to the contrary and, therefore, we have the power to excuse appellant's failure to include such matters in his notice of appeal.
The legislative history of these amendments clearly indicates that the inclusion of the designation of record and a statement of points was not intended to be jurisdictional.
The 1971 amendments enlarging the requirements for the notice of appeal were instituted in Senate Bill 66. The bill states it was introduced 'at the request of the Attorney General.' The bill was prepared by the Attorney General's office. The Attorney General prepared an extensive memorandum in support of the bill. The memorandum was entitled, 'Expediting Disposition of Criminal Appeals in Oregon.'
One of the principal proposals to expedite appeals was to speed up the preparation of the transcripts by the court reporters. Under the heading, ...
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...the notice of appeal. 230 Or. at 210-211, 358 P.2d 1062. Gordon Creek Tree Farms v. Layne, supra, was followed in Millard v. Mitchell Bros., 261 Or. 165, 492 P.2d 783 (1972), which held that appellate jurisdiction was not defeated by appellant's failure to designate the portions of the proc......
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...on which appellant intends to rely. ORS 19.029(1)(e), 19.033(2); see Stahl v. Krasowski, Or., 573 P.2d 309 (1978); Millard v. Mitchell Bros., 261 Or. 165, 492 P.2d 783 (1972). In this case, the City Council does not contend that the original notice of appeal was not filed and served within ......
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