Simpson v. Winegar

• Decision Date: 06 July 1927
• Parties: SIMPSON v. WINEGAR.
• Court: Oregon Supreme Court

258 P. 562

122 Or. 297

SIMPSON v. WINEGAR.

Supreme Court of Oregon, En Banc.

July 6, 1927

Appeal from Circuit Court, Polk County; Arlie G. Walker, Judge.

Action by O. G. Simpson, administrator of the estate of I. M Simpson, deceased, against J. E. Winegar. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

Vinton & Tooze, of McMinnville, for appellant.

Oscar Hayter, of Dallas, for respondent.

BURNETT C.J.

The circuit court for Polk county rendered a judgment in favor of the plaintiff and against the defendant January 21, 1927. On February 25, next thereafter, the defendant served and filed his notice of appeal and undertaking. There being no objections to the sufficiency of the surety on the undertaking, the appeal became perfected 5 days thereafter or on March 3, 1927. The next event in the chronology of the case was the order of the court, dated February 28, granting the appellant "up to and including May 1 in which to file in the Supreme Court of the state of Oregon the transcript on appeal." Then came the act of the Legislative Assembly of March 3, 1927 (Laws 1927, p 404), with its emergency clause declaring that it should take effect and be in full force from and after its passage. It was approved by the Governor March 3, 1927. It was amendatory of section 554, Oregon Laws. The second clause of the amended section reads thus, so far as affects this case:

"* * * 2. If the transeript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned, and the effect thereof terminated, but the trial court or the judge thereof, or the Supreme Court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same, but such order shall be made within the time allowed to file transcripts, and only after three days' notice has been given to the opposing party. * * *"

On April 6 the trial court, without notice to the respondent, made an order granting the appellant up to and including May 1, 1927, within which to serve and file his bill of exceptions, and until May 15, 1927, in which to file his transcript in this court. The transcript was in fact filed May 12, 1927. The abstract of record was filed June 1, 1927, but without any order extending the time to that date.

The dates and facts of the orders are substantially admitted by the appellant, but he complains that he did not know about the emergency clause to the act in question and that he should not be bound by it and ought not to be held to give notice to the opposite party of an application to enlarge the time for filing the transcript or abstract.

As stated by Mr. Justice Rand in Cameron v. Stevens (Or.) 256 P. 395, decided May 24, 1927:

"The effect of an emergency clause upon acts passed by the Legislature is to cause the act to take effect at once upon its approval by the Governor and to prevent its not going into effect until after the expiration of the period otherwise prescribed by the Constitution. What may be deemed an emergency, for this purpose, is purely a legislative question. The courts will not inquire into it, nor entertain any question of its sufficiency. I Lewis' Sutherland Statutory Const. (2d Ed.) § 176."

All the orders extending the time within which to file the transcript, except the first, were made after the act mentioned had taken effect, namely, after March 3, 1927, and they were all made without any notice although the same is required by the new statute. Here was a situation in which the plaintiff had a judgment with a right to enforce the same. The appeal was designed to overturn that right by means of a resort to this court. In order to accomplish this result it is requisite that the procedure laid down in the statute must be followed:

"The mode of appeal must follow the statute, and when the statute requires that the appeal shall be taken in a specified manner, it must be followed as to the time, manner and the fulfilling of all the statutory directions." Brown on Jurisdiction (2d Ed.) § 21a, quoted with approval by Mr. Justice Rand in Walker v. Fireman's Fund Ins. Co. (Or.) 257 P. 701, decided June 21, 1927.

The language used, "But such order shall be made within the time allowed to file transcripts, and only after 3 days' notice has been given to the opposing party," is mandatory. It is well settled that, where even the word "may" is used, and the rights of the public or of a third party are affected, the language is mandatory, and must be strictly obeyed. In Kohn v. Hinshaw, 17 Or. 308, 311, 20 P. 629, 631, Mr. Justice Strahan said:

"* * * It is a general principle in statutory construction that, where the word 'may' is used in conferring power upon an officer, court, or tribunal, and the public or a third person has an interest in the exercise of the power, then the exercise of the power becomes imperative." See, also, Smith v. King, 14 Or. 10, 12 P. 8; McLeod v. Scott, 21 Or. 94, 26 P. 1061, 29 P. 1; and Hubner v. Hubner, 67 Or. 557, 136 P. 667.

It was said in City of Madison v. Daley (C. C.) 58 F. 751, 753:

"* * * 'Shall' will be construed 'may' where no public or private right is impaired by such construction; but where the public are interested, or where the public or third persons have a claim de jure that the act shall be done, it is imperative, and will be construed to mean 'must.' '%

See, also, Ex parte Jordan, 94 U.S. 248, 24 L.Ed. 123; Madderom v. Chicago, 194 Ill. 572, 62 N.E. 846; Haseltine v. Simpson, 61 Wis. 427, 21 N.W. 299, 302; Glazier v. Heneybuss, 19 Okl. 316, 91 P. 872; and Ex parte Simonton, 9 Port. (Ala.) 390, 33 Am. Dec. 320.

On this cañon of construction the precedents might be multiplied indefinitely. It is clear that the respondent has as much right to the protection of the judgment in his favor as the appellant has to overturn it by his appeal. Consequently the latter must pursue the mandatory terms of the statute and give notice, if he would obtain the necessary extension of time within which to confer jurisdiction upon this court by filing his transcript.

In several cases within the last few years this court has held that the rules of court are as binding upon the court as the law itself. In Bratt v. State Industrial Accident Commission, 114 Or. 644, 236 P. 478, a rule of court required a notice to be given to the attorneys of each party of the setting of a case for trial, but despite this rule, the court did set a case for trial without any notice having been given to the opposite parties, and a judgment was taken under those circumstances, but it was reversed and remanded to the circuit court for further proceedings. The court said:

"Where a court has established rules for its government and that of suitors, there exists no discretion in the court to dispense at pleasure with their rules, or to innovate on established practice."

This is an excerpt from Hughes v. Jackson, 12 Md. 463, cited with approval in Coyote G. & S. M. Co. v. Ruble et al., 9 Or. 121, 124, and Schnitzer v. Stein, 96 Or. 343, 346, 189 P. 984.

Likewise in Oxman v. Baker County, 115 Or. 436, 234 P. 799, 236 P. 1040, it was held that, where a circuit court rule required a bill of exceptions to be presented within 30 days after entry of judgment unless otherwise ordered, after such 30 days expired, the circuit court had no authority to enter an ex parte order without notice to the adverse party extending time, nor could it, without notice, render a second judgment, and by that means fix a new date from which to compute 30 days; such second judgment being a mere nullity.

Also in Ptack v. Strong (Or.) 257 P. 19, decided by this court June 21, 1927, the rule of the court provided that:

"Parties seeking bills of exceptions must prepare their proposed bill and serve a copy of same on the opposing counsel, and present and lodge the original thereof to and with the judge of this court within twenty days after the entry of judgment. * * *"

The opinion by Mr. Justice Rand said:

"This rule is mandatory in terms and leaves no discretion in the trial judge where the rule has not been complied with and is as binding upon the court as on the parties to the action."

Oxman v. Baker County, supra, was cited as sustaining the decision.

If then, such language in a rule of court is mandatory, much more is it mandatory when enacted...