Peterson v. Beals

• Decision Date: 15 November 1921
• Citation: 102 Or. 245,201 P. 727
• Parties: PETERSON v. BEALS ET AL.
• Court: Oregon Supreme Court

201 P. 727

102 Or. 245

PETERSON v. BEALS ET AL.

Supreme Court of Oregon

November 15, 1921

In Banc.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Suit by Andrew Peterson against F. R. Beals and others. Decree for defendants, and plaintiff appealed. Appeal dismissed without opinion, and plaintiff prays rehearing. Petition denied.

Mathison & Mannix, of Astoria, and E. J. Claussen, of Tillamook, for appellant.

Botts &amp Winslow, of Tillamook, for respondents.

BURNETT C.J.

In this case the defendants moved to dismiss the appeal of the plaintiff on the ground that, as appears from the records in this cause, the decree herein was entered by the circuit court on April 14, 1921, and the notice of appeal was not served until June 17, 1921, or more than 60 days after the entry of the decree. The motion was sustained and the appeal was dismissed without an opinion. In his petition for a rehearing, the plaintiff endeavored to show by accompanying affidavits that the decree was not rendered on April 14, 1921, but on the later date of April 20. In other words, he undertakes to make it appear by affidavits that the trial judge heard the cause in term time, took the matter under advisement, and afterwards, on April 14, 1921, made findings of fact and conclusions of law together with a decree which he forwarded to the clerk of the court, who received it on April 20 and afterwards entered it in the journal. The essence of the plaintiff's endeavor is to make the authentic history of the proceedings rest partly on the official journal of the court and partly on ex parte affidavits of individuals.

The official transcript filed by the plaintiff on his appeal reads thus:

"Be it remembered, that heretofore on the 14th day of April, 1921, the same being a day of a regular term of the circuit court for the county of Tillamook and state of Oregon, there was made and entered of record a decree in words and figures as follows, to wit." Then follows the title of the court and cause, succeeded by these words:

"Based on the findings of fact and conclusions of law heretofore made and entered in this cause it is by the court ordered and decreed."

And this in turn is succeeded by the terms of the decree, about which there is no dispute, ending with the date April 14, 1921, and the signature of the presiding judge. At the foot, after the signature of the judge, appear these words:

" 'Indorsed' filed April 20, 1921. H. S Brimhall, Clerk, by Bernice E. Ripley, Deputy."

We thus have the official declaration of the custodian of the records of the circuit court that the decree appealed from was made and entered of record on April 14, 1921, "the same being a day of a regular term of that court."

In effect, the effort of the plaintiff in this petition for rehearing is to have this court treat this record as amended and upon that new showing to reverse our former ruling and overrule the motion to dismiss the appeal. The only question before us is whether or not, on the data at that time before us, we ruled correctly in dismissing the appeal. We have no authority to amend the record of the circuit court. The only power this court has is to determine whether or not the circuit court erred in its decision, and even this we cannot do except upon an appeal regularly prosecuted in the manner prescribed in the statute upon appeals. Perforce, we must decide whether or not we have jurisdiction, and this we must do from the record presented by the appellant. As taught in Wolf v. Smith, 6 Or. 73, he must bring into the appellate court a perfect record. Unless he does so, the latter tribunal does not gain jurisdiction. The official record of the court below imports absolute verity, and as said in Hislop v. Moldenhauer, 24 Or. 106, 32 P 1026:

"The recitals of a journal entry as to the day on which a judgment was rendered cannot be contradicted in the Supreme Court by a certified memorandum kept by the clerk of the trial court."

In that case the plaintiff insisted that the judgment in question actually was taken in the circuit court on May 20, 1892, but, owing to the neglect of counsel to furnish a proper entry for the clerk, it was written in the journal under date of May 24, 1892. Supporting his claim, the plaintiff produced the affidavit of the clerk corroborating his statement. The decision there held this to be incompetent, and ruled, in effect, that the journal entry is the conclusive and authoritative statement of the doings of the trial court.

In argument, the plaintiff assumes that the decree in question was entered in vacation. The...