Simpson v. Simpson

• Decision Date: 04 September 1984
• Citation: 697 P.2d 570,73 Or.App. 1
• Parties: Marjorie Louise SIMPSON, Respondent, v. Derrill O. SIMPSON, Appellant. 16-83-02801; CA A32752. . On Respondent's Motion to Dismiss
• Court: Oregon Court of Appeals

Page 570

697 P.2d 570

73 Or.App. 1

Marjorie Louise SIMPSON, Respondent, v. Derrill O. SIMPSON, Appellant.

16-83-02801; CA A32752.

Court of Appeals of Oregon.

On Respondent's Motion to Dismiss Sept. 4, 1984 Decided March 27, 1985 Reconsideration Denied June 7, 1985.

Michael W. Doyle, Donald A. Bick and Bick & Monte, P.C., Eugene, appeared for motion.

Paul D. Clayton, Eugene, J.P. Graff, and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, appeared contra.

Before WARDEN, P.J., JOSEPH, C.J., and VAN HOOMISSEN, J.

JOSEPH, Chief Judge.

Respondent moves to dismiss this appeal on the ground that the notice of appeal was not timely filed. We dismiss the appeal.

On May 9, 1984, a jury returned a verdict in favor of respondent. On that date, the trial judge signed a judgment conforming to the verdict. These facts appear on the face of the verdict form signed by the jury foreman and the judgment signed by the trial judge.

The trial court's register of actions indicates that the judgment was entered. ¹ The register also indicates that notice of entry of the judgment was mailed to the parties on May 11, 1984. On May 18, 1984, appellant filed a motion for judgment n.o.v. or, alternatively, a new trial. Under ORCP 63 C and 64 F, the motion would have been deemed denied 55 days after entry of the judgment, which would have been July 3, 1984, unless it were determined sooner by the court. Without an earlier determination of the motion, ORS 19.026(2)(b) would have required that the notice of appeal be filed within 30 days of the date the motion was deemed denied, which would have been August 2, 1984. In fact, the notice of appeal was filed on July 26, 1984, and it was timely unless an earlier determination of the motion by the trial court started the running of the 30-day appeal period sooner. ²

It appears from the record that, on June 13, 1984, a hearing was held on appellant's motion, and on June 15, 1984, an order denying the motion was signed by the judge. If the order was entered in the register ³ on June 15, the appeal period would have elapsed on July 15, a Sunday, and appellant would have had until the following day, Monday, July 16, to file a notice of appeal. Part of the problem arises from the fact that the clerk of the court failed to send any notice to the parties of entry of the order denying the motion. ^{4 4} On July 17, 1984, 32 days after the order was signed, another hearing was held, and the court, on its own motion, signed an order which purported to vacate the June 15 order.

The question is whether the trial court's order of July 17, 1984, was effective to vacate the June 15 order denying the motion for judgment n.o.v. or a new trial, thereby extending the appeal period.

Appellant argues that the court need not reach that issue, because the face of the June 15 order shows only that it was "filed" on June 15 and does not show when it was entered in the register. He urges that the case is controlled by Blackledge v. Harrington, 289 Or. 139, 611 P.2d 292 (1980), in which the court distinguished between the filing of a judgment and its entry. In connection with that argument, appellant has moved the court to consider affidavits by two court operations supervisors of the Lane County Circuit Court to the effect that at that time the trial court clerk in that county would not have indicated on the register the actual date of entry of a document into the register, but rather would have indicated only the date the document was filed with the clerk of the court. Appellant argues that, because neither the face of the June 15 order nor the register reveals the actual date of entry, the running of the appeal period cannot be calculated, and so the appeal cannot be dismissed.

Assuming, without deciding, that the affidavits of the court operations supervisors may be considered by this court on appeal, they are insufficient to overcome the statutory presumption that the trial court clerk regularly performed the official duty of entering the order on June 15, 1984. OEC 3.11(j); see Henson and Henson, 61 Or.App. 210, 216, 656 P.2d 345 (1982). There can be no doubt that the order was entered. Although, as appellant argues, and Blackledge states, the acts of filing and entry are separate acts, it does not follow that those acts necessarily took place on different dates. There is insufficient evidence that the June 15 order was in fact entered on any other date.

The trial court was without authority to set aside the June 15 order. Far West Landscaping, Inc. v. Pacific Cascade Corp., supra, n. 4, and Stevenson v. U.S. National Bank, 296 Or. 495, 677 P.2d 696 (1984), make it clear that an order cannot be set aside for the sole purpose of extending the time for appeal. The time for appeal here expired on July 16, 1984.

We have reviewed the transcript of the July 17 hearing. The judge determined that no notice of his June 15 order had been sent to the parties as required by law. He then stated:

"In the interests of justice, I'm going to...