State ex rel. Borland v. Yates

• Decision Date: 19 September 1922
• Citation: 209 P. 231,104 Or. 667
• Parties: STATE EX REL. BORLAND v. YATES.
• Court: Oregon Supreme Court

209 P. 231

104 Or. 667

STATE EX REL. BORLAND v. YATES.

Supreme Court of Oregon

September 19, 1922

In Banc.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Filiation proceeding by the State on the relation of Belle C. Borland against Paul C. Yates. From judgment for defendant, the State appeals. Appeal dismissed.

Lida M. O'Bryon, of Portland (Thomas Mannix, of Portland, on the brief), for appellant.

W. E Farrell, of Portland (Wilber Henderson and Davis & Farrell all of Portland, on the brief), for respondent.

McCOURT J.

This is an appeal prosecuted by the state from the decision of the circuit court in a filiation proceeding instituted against the defendant in the district court of Multnomah county in conformity with chapter 48, Laws of 1917 (sections 2550-2563 Or. L.). The defendant was held under bail to appear at the next term of the circuit court and answer the complaint. A trial having been had without a jury in the circuit court the defendant was found not guilty, whereupon a judgment was entered, discharging the defendant, and releasing and exonerating his bail. It is from the latter judgment that the state appeals.

The defendant has interposed a motion to dismiss the appeal upon the ground that no right of appeal is given the state in proceedings of the character under consideration. This court has many times held that the right to an appeal depends entirely upon the statute, and, if that right is not conferred by statute, it does not exist. Lafayette v. Clark, 9 Or. 225; Kearney v. Snodgrass, 12 Or. 311, 314, 7 P. 309, 311; Fisk v. Henarie, 15 Or. 89, 90, 13 P. 760; School Dist. v. Irwin, 34 Or. 431, 56 P. 413; Portland v. Gaston, 38 Or. 533, 63 P. 1051; Sears v. Dunbar, 50 Or. 36, 38, 91 P. 145; City of Portland v. Nottingham, 58 Or. 1, 113 P. 28; Doane v. Stein, 87 Or. 97, 99, 169 P. 781; State v. Securities Savings Co., 28 Or. 410, 43 P. 162; Smith Securities Co. v. Multnomah County, 98 Or. 418, 422, 192 P. 654, 194 P. 428; Salem King's Products Co. v. La Follette, 100 Or. 11, 13, 196 P. 416.

The proceeding authorized by chapter 48, Laws of 1917 (sections 2550-2563, Or. L.), is a special proceeding, civil in its nature. 3 R. C. L. 750, 761; 7 C.J. 966.

"The common law afforded no remedy to compel a putative father to contribute to the support of his illegitimate offspring." 3 R. C. L. 750.

However, it is claimed by the state that the right of the state to appeal is conferred by section 548, Or. L., which reads as follows:

"A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or an interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or, an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree."

The statute (chapter 48, Laws of 1917; sections 2550-2563, Or. L.), provides in detail the procedure to be employed in bastardy proceedings, and among those provisions is the following:

"* * * That defendant shall be entitled to the right of trial by jury, and appeal, as provided in civil actions. * * *"

The right of appeal given by the...