Moss v. Woodcock
| Decision Date | 11 December 1923 |
| Citation | 220 P. 1017,109 Or. 449 |
| Parties | LIBBY v. SOUTHERN PAC. CO. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Marion County; George G. Bingham, Judge.
On petition for rehearing. Petition denied.
For former opinion, see 219 P. 604.
Ben C. Dey, Roscoe C. Nelson, and C.J. Young, all of Portland, for appellant.
L. W. Matthews, of Portland, and W. C. Winslow, of Salem, for respondent.
The petition for rehearing in this case is based principally upon the fact that an order extending appellant's time to file a transcript in this court was actually made and entered in the circuit court on May 31, 1923, and that such order was inadvertently omitted by the clerk of the circuit court in sending up his transcript. We now have the order here, and it may be conceded that the transcript was filed in time; but this does not affect the validity of the appeal.
The remedy by appeal is not a constitutional right, but a statutory privilege, in which nobody has a vested right. Such remedy may be taken away by appropriate legislation at any time before a final hearing, and, as abundantly shown by Justice Burnett in the principal opinion herein, such was the effect of chapter 153 of the General Laws of Oregon for 1923. To make our position absolutely clear we will say that, if the case had been properly appealed and set down regularly for trial, and in the meantime the act cited had gone into effect only one day before the date appointed for hearing, that fact would have ousted us of jurisdiction to hear the appeal. See Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264, Railroad Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231, and other cases cited in the principal opinion.
The petition for rehearing is denied.
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