Welch v. Arney

• Decision Date: 20 June 1950
• Citation: 219 P.2d 1086,189 Or. 277
• Parties: WELCH v. ARNEY.
• Court: Oregon Supreme Court

219 P.2d 1086

189 Or. 277

WELCH v. ARNEY.

Supreme Court of Oregon, En Banc.

June 20, 1950

Submitted June 13, 1950.

Theodore R. Conn, of Lakeview, for the motion.

Robert L Welch, of Lakeview, contra.

LUSK Chief Justice.

Respondent has moved to dismiss the appeal on the ground that the notice of appeal was served by the appellant himself. He contends that such service by a party to an action or suit is not authorized by statute and is a nullity.

The respondent's position is supported by Keeley v Keeley, 97 Or. 596, 597, 182 P. 490; Muckle v Columbia County, 56 Or. 146, 108 P. 120; and Williams v. Schmidt, 14 Or. 470, 13 P. 305. But in Storm v. Thompson, 155 Or. 686, 690, 64 P.2d 1309, 1310, the court said obiter that 'the service may be made by the party himself, his attorney, or any qualified and competent third person.' This apparent conflict makes advisable an expression of our views.

Williams v. Schmidt involved an appeal from the Justice's Court to the Circuit Court. The decision in the Justice's Court was against the defendant, who himself served the notice of appeal. The Circuit Court dismissed the appeal and this court affirmed in an opinion by Chief Justice Lord. The court called attention to the provisions of the statute governing the service of notices, which read then as it does now 'The service, or deposit in the postoffice, when served by mail, may be made by any person other than the party himself. The proof of service shall be the same as the proof of service of a summons, and shall be returned with the original notice, or other paper of which service is made, at the time and place therein prescribed for the hearing or other proceeding to be had thereon.' § 10-603, O.C.L.A. Referring to those provisions of the statute which designate the persons by whom the service of summons may be made in the Justice's Court and the Circuit Court, the court said that the proof of service must be made by someone authorized to make the service, and that, since 'there is no case in which a party to an action, whether plaintiff or defendant, is authorized or can serve a summons, it follows as a consequence that there can be no proof of service by affidavit or otherwise by such parties.' It was further said that 'a proper construction of the [statute] is, that the service must be made by some person other than the party himself' and that 'it is inconsistent with public policy and the impartial administration of justice to permit a party to execute process in his own favor.' Marion County v. Stanfield, 8 Iowa 406, was cited in support of the decision. This ruling was followed in the later cases of Muckle v. Columbia County and Keeley v. Keeley, without any elaboration of the reasoning. See, also, 4 C.J.S., Appeal and Error, § 594b, p. 1067; 3 C.J., Appeal and Error, 1230, § 1334.

In Storm v Thompson the notice of appeal was, through the mistake of a stenographer in an attorney's office, entrusted to an express company, instead of being deposited in the post office. An agent of the express company delivered the notice of appeal to the office of the attorney for the respondent. The court held the service good. In 155 Or. at page 690, 64 P.2d at page 1310 it was said: 'Our statute prescribes that a party to a judgment or decree desiring to appeal therefrom 'may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place...