Northwestern Nat. Ins. Co. of Milwaukee, Wis. v. Averill

• Court: Supreme Court of Oregon
• Writing for the Court: CAMPBELL, Chief Justice.
• Citation: 42 P.2d 747,149 Or. 672
• Parties: NORTHWESTERN NAT. INS. CO. OF MILWAUKEE, WIS., et al. v. AVERILL, Ins. Com'r.
• Decision Date: 26 March 1935

42 P.2d 747

149 Or. 672

NORTHWESTERN NAT. INS. CO. OF MILWAUKEE, WIS., et al.
v.
AVERILL, Ins. Com'r.

Supreme Court of Oregon

March 26, 1935

En Banc.

Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.

Action by the Northwestern National Insurance Company of Milwaukee, Wisconsin, and another, against A. H. Averill, as State Insurance Commissioner. Judgment for defendant, and plaintiffs appeal.

Appeal dismissed.

ROSSMAN and BELT, JJ., dissenting.

Guy E. Kelly, of Tacoma, Wash., for appellants.

I. H. Van Winkle, Atty. Gen., and Willis S. Moore, Asst. Atty. Gen., for respondent.

CAMPBELL, Chief Justice.

Plaintiff is a fire insurance corporation organized under the laws of the state of Wisconsin. It brought this action against the insurance commissioner of this state, on a stipulation of facts, for the purpose of testing the constitutionality of the Oregon statute relating to the appointment and licensing of more than one agent in the cities of this state. Oregon Code 1930, §§ 46-1604, 46-1608.

The circuit court entered judgment against plaintiff, and it attempted to appeal to this court by giving [149 Or. 673] a notice of appeal not signed by appellant or by any attorney of this court. The notice of appeal came to our attention, and the question is: Should the court on its own motion dismiss the appeal?

We agree with counsel that it is not the policy of this court to dismiss appeals on [42 P.2d 748] mere technicalities. Neither is it the policy of the court to assume jurisdiction of causes unless the plain provisions of the statute conferring jurisdiction have been complied with. The appeal should be dismissed on the authority of In re Estate of Nelson, 101 Or. 14, 198 P. 892. The principles announced in that case are in strict conformity with the statute, and we see no reason for overruling that authority in the instant case.

The appeal will be dismissed.

It is so ordered.

BAILEY, Justice (concurring).

The decree dismissing this suit was entered in the circuit court for Marion county on June 29, 1934. Thereafter, on July 10, 1934, a notice of appeal signed by "Guy E. Kelly, attorney for applicants and appellants," with post office address at Tacoma, Wash., was filed in said court, with acknowledgment of receipt of a copy thereof on said date by one of the attorneys for the defendant.

In due time the transcript and appellants' abstract and brief were filed with the clerk of this court, and on September 28, 1934, the attorney general and his assistant, representing the insurance commissioner, filed here respondent's brief.

At the time set for the argument, this court sua sponte questioned its jurisdiction to hear the appeal, on the ground that the notice of appeal had not been [149 Or. 674] signed by either of the plaintiffs or by an attorney duly admitted to practice in the courts of this state, based upon the decision in the case of In re Nelson's Estate, 101 Or. 14, 198 P. 892. The argument of the case was postponed to permit briefs to be filed on the question of jurisdiction.

It is admitted that the individual who signed the notice of appeal and appeared here as representative of the appellants has not been admitted to practice law in this state, although he asserts that he is a duly admitted and regularly practicing attorney of the state of Washington and has been admitted to practice in other states.

In the instance of In re Estate of Nelson, supra, an attempt was made to appeal from the county court to the circuit court, with the notice of appeal signed by a regularly admitted and practicing attorney of the state of Washingon, and the appeal was dismissed by the circuit court on the ground that the notice was not signed by the appellant or by any attorney authorized to practice law in this state. On appeal to this court the circuit court's order of dismissal was affirmed. This court there based its decision on sections 550, 1074, 1076, 1081, and 1093-1, Or. L., which sections are now, respectively, sections 7-503, 32-101, 32-103, 32-108, and 32-504, Oregon Code 1930.

Section 7-503, supra, provides that in case appeal is not taken at the time the decision, order, judgment, or decree is rendered, the party desiring to appeal shall "cause a notice, signed by himself or attorney, to be served on such adverse party" or his attorney. An attorney is defined by section 32-101, supra, as "a person authorized to appear for and represent a party, in the written proceedings in any action, suit, or proceeding, in any stage thereof." An attorney who does not represent [149 Or. 675] a party in the "written proceedings" may appear and represent the party in court, in which event "he is known, in the particular action, suit, or proceeding, as counsel only." Section 32-101, supra. Any one who has been admitted by the Supreme Court to practice law in this state may act in the capacity of attorney. Section 32-103, supra. "Whenever it appears that a person of any other state or country is an attorney of the highest court of record in such state or country, he may appear as counsel for a party, in a particular action, suit, or proceeding *** in court *** but not otherwise. " Section 32-108, supra. Section 32-504 declares that it shall be unlawful for any one to engage in the practice of law in this state "without first having been duly admitted and licensed as an attorney at law in the courts of this state." (Italics ours.)

For our present purpose we shall assume that the individual representing himself to be attorney for the appellants was duly admitted to practice law in the state of Washington, but he has never applied, or been admitted, to practice law in this state. He was, therefore, at the time of appearing here, not an attorney within the meaning of the sections of our Code above referred to, "authorized to appear for and represent" the appellants as an attorney in signing the notice of appeal, or in other proceedings in this court. He might have acted as counsel only, which office would not have authorized him, under the sections already mentioned, to sign the notice of appeal as attorney on behalf of the appellants.

An appeal to this court from the circuit court is a new proceeding. Shirley v. Birch, 16 Or. 1, 18 P. 344; Johnson v. Prudential Life Insurance Co., 120 Or. 353, 252 P. 556. And since notice of appeal was not given at the time of the rendering of the decree in the circuit court, the only method of appealing [149 Or. 676] was by preparing a written notice, signed by [42 P.2d 749] the appellants or their attorney, and serving the same on the adverse party or his attorney. Section 7-503, supra.

Ordinarily, the precedent of In re Estate of Nelson, supra, inasmuch as that decision has not been questioned during the years, some fourteen, since it was rendered, should be considered conclusive of the question now before us, unless it is wrong in principle and out of harmony with the great weight of authority in other jurisdictions. In the case at bar it is not contended that the Washington attorney was in any way associated in the circuit court with an attorney duly admitted to practice law in Oregon, nor is the contention made that notice of appeal was actually served by any person who was an attorney of this court and who was representing the appellants on this appeal but had omitted to sign his name on the notice of appeal, or that a resident attorney was in any way associated with the nonresident attorney.

In the case of North Laramie Land Co. v. Hoffman, 27 Wyo. 271, 195 P. 988, 991, the court on rehearing permitted what it labeled as "the unsigned petition in error" to be amended by adding thereto the name of a resident, who had acted as attorney in the lower court. In a former opinion, 26 Wyo. 327, 184 P. 226, the Supreme Court of Wyoming had ordered the appeal dismissed on the ground that the petition in error was signed only by a non-resident attorney not admitted to practice in Wyoming. According to the practice in that state the party desiring to appeal was required to file in the district court a petition in error setting forth the errors complained of, and at the same time to file a "præcipe for summons," which was required to contain certain information as to the time and place of filing the petition in error and was required [149 Or. 677] "to be served in the manner provided by law for service of summons in civil actions."

The nonresident attorneys in that case had prepared and sent to the local attorney who was associated with them in the case the petition in error, and the latter attorney neglected to sign it but filed it and filed with it an application for the clerk of the district court to transmit to the supreme court certain original papers, and in addition filed a "præcipe for summons in error." At the time of presenting the papers for filing he requested the clerk to enter his name on the records of the Supreme Court as attorney for plaintiff in error. The court, under the statute providing for amendments, permitted the petition in error to be amended by adding the name of the resident attorney. In passing upon this matter, the court said: "The petition in error not having been subscribed by any one having authority to subscribe it, it stood as an unsigned petition. But by the clear weight of authority, under our and similar Code provisions, a petition not signed or improperly signed, whether it be a petition to commence a civil action or a petition in error, is not a nullity, and the failure to properly subscribe the same is merely a formal defect, which may be waived, or may be cured by amendment; and, to correct a mere matter of form, an amendment of a petition in error may be allowed even after the expiration of the time for bringing the proceedings." Citing numerous authorities.

In referring to its former decision in the same case, the court observed: "It is alleged in the petition...