State Unemployment Compensation Commission v. Bates

• Decision Date: 24 May 1961
• Citation: 362 P.2d 321,227 Or. 357
• Parties: STATE UNEMPLOYMENT COMPENSATION COMMISSION, Respondent, v. Walter E. BATES, Appellant.
• Court: Oregon Supreme Court

Page 321

362 P.2d 321

227 Or. 357

STATE UNEMPLOYMENT COMPENSATION COMMISSION, Respondent, v. Walter E. BATES, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted May 3, 1961.

Decided May 24, 1961.

Samuel F. Speerstra, Salem, argued the cause for appellant. With him on the brief were Bartlett Cole, Portland, and Rhoten, Rhoten & Speerstra, Salem.

Roland V. Brown, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., E. Nordyke and C. Sorensen, Asst. Attys. Gen.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL, and LUSK, JJ.

LUSK, Justice.

This case is here for the second time.

The first appeal was taken by the plaintiff from a judgment for the defendant entered pursuant to the allowance of a motion by defendant for a directed verdict. This court reversed, and, as provided in the mandate, remanded the cause to the court below 'with directions to take further proceedings in conformity with the opinion of the Court herein * * *.' State Unemployment Compensation Comm. v. Bates, 217 Or. 121, 341 P.2d 119.

After receipt of the mandate by the circuit court, the plaintiff moved for judgment in its favor based on the mandate. The court allowed the motion, vacated the former judgment, and entered judgment for the plaintiff in accordance with the prayer of the complaint on July 18, 1960.

On July 26, 1960, defendant filed a 'Motion to Set Aside Judgment and to Grant a New Trial' on the ground that the court's action was not in conformity with the mandate of this court. This motion was denied by an order entered on September 20, 1960, and on October 18, 1960, the defendant served and filed a notice of appeal from the last-mentioned order.

The notice of appeal reads:

'State Unemployment Compensation

Commission,

Plaintiff-Respondent

vs.

Walter E. Bates,

Defendant-Appellant

'Notice of Appeal

'To: State Unemployment Compensation Commission, Plaintiff, and Robert Y. Thornton, Attorney General, and Roland V. Brown, Assistant Attorney General, its attorneys:

'You and Each of You will please take notice that the above named defendant, Walter E. Bates, hereby appeals to the Supreme Court of the State of Oregon from that certain Order entered in the above captioned court and cause on the 20th day of September, 1960, denying defendant's Motion To Set Aside Judgment And To Grant A New Trial which provides as follows:

"It Is Hereby Ordered that defendant's Motion To Set Aside Judgment And To Grant A New Trial be, and it hereby is, denied.'

and the defendant appeals from the whole of the said order and every part thereof.

'Dated this 17 day of October, 1960.

'/s/ Rhoten Rhoten & Speerstra

'Attorneys for Defendant-Appellant'

We do not reach the merits of the question presented for decision, because this court is without jurisdiction of the appeal. By the uniform course of decision in this state an order denying a motion to set aside a judgment and for a new trial is not an appealable order. The leading case is Macartney v. Shipherd, 60 Or. 133, 117 P. 814. In an opinion applying this rule it was said by Mr. Justice Harris, speaking for the court:

'* * * An unbroken line of authorities sustain this conclusion and to deny the motion to dismiss this appeal would be to ignore every precedent where the court has spoken upon the subject: (citing prior decisions).' Purdy v. Winters' Estate, 85 Or. 188, 193, 159 P. 1091, 166 P. 536, 537.

Similar holdings in the more recent cases include Columbia Auto Works v. Yates, 176 Or. 295, 156 P.2d 561; Nichols v. Nichols, 174 Or. 390, 395, 143 P.2d 663, 149 P.2d 572. We are aware of no Oregon decision to the contrary.

The only appealable order in the record is the judgment entered July 18, 1960. ORS 19.010(2)(a); Durkheimer Inv. Co. v. Zell, 161 Or. 434, 437, 90 P.2d 213; In re Norman's Estate, 159 Or. 197, 203, 78 P.2d 346; Electrical Products Corp. of Oregon v. Ziegler Drug Stores, 157 Or. 267, 272, 68 P.2d 135, 71 P.2d 583. No appeal from that order has been taken, and the time for appealing from it has long since passed.

It is provided in ORS 19.010:

'(1) A judgment or decree may be reviewed on appeal as prescribed in this chapter.

'(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:

'(a) An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein.

* * *

* * * '(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree.

'(d) An order setting aside a judgment and granting a new trial.'

In Macartney v. Shipherd, supra, the court said in reference to this statute, which was then section 548, L.O.L.:

'It will be observed that, although an order setting aside a judgment and granting a new trial is by the terms of this section deemed a judgment for the purpose of an appeal, an order overruling a motion for a new trial is omitted from the category. * * *' 60 Or. 135, 117 P. 815.

The court continued:

'* * * Within the principle that an appeal is not a matter of right, but depends upon the statute, the amendment cannot be expanded beyond its terms so as to include in the present instance the order denying such a motion. To deny a new trial does not determine the action so as to prevent a judgment or decree therein within the terms of the Code, for the judgment has already been entered. The order denying the motion does not affect the judgment or the rights of either party under the judgment. It is simply the adherence of the court to its former ruling. The rights of the parties are determined by the judgment, and are not affected one way or the other by the refusal of the court to allow the motion. Hence, upon principle as well as by the doctrine of stare decisis founded upon Oldland v. Oregon Coal & Navigation Company, 55 Or. 340 ( 102 Pac. 596), which is followed in Colgan v. Farmers' & Mechanics' Bank, 59 Or. 469 ( 114 Pac. 460 ), the denial of a motion for a new trial does not furnish ground for appeal.' 60 Or. 136, 137, 117 P. 815.

See also: Orr v. Orr, 75 Or. 137, 143, 144 P. 753, 146 P. 964; In re Sneddon, 74 Or. 586, 591, 144 P. 676; Goodeve v. Thompson, 68 Or. 411, 416, 136 P. 670, 137 P. 744.

ORS 19.023 provides that the notice of appeal '* * * shall be in the form prescribed in ORS 19.029 * * *' and the latter section says that the notice of appeal shall contain, inter alia:

'(3) A notice to the adverse party or his...