Smith v. Little , 188 Or. 682 ( 1950 )

LUSK, C. J.

This is a motion by the respondent to dismiss an appeal. The proceeding was one to establish a claim against a decedent’s estate in the Circuit Court (Probate Department) for Multnomah County. There was a summary hearing, at the conclusion of which the court entered an order approving the claim, and the executor appealed. Respondent says that the order is not appealable and that the case is controlled by In re Wells’ Estate, 187 Or. 462, 212 P. (2d) 729, in which we held that the right to appeal from a summary determination by that court of a claim against an estate had been abolished by the provisions of Ch. 477 and Ch. 530, Oregon Laws 1949, and that since the effective date of those statutes the only appeal-able orders in that class of cases are those made at the conclusion of the trial of a plenary action upon the claim. The statutes referred to became effective July 16, 1949. In the Wells case the hearing was had August 29, 1949, and the order allowing the claim was entered August 31, 1949. It was a summary hearing. We held that the statutes applied to pending cases and dismissed the appeal for want of jurisdiction. We did not hold (for the question was not before us) that they applied to cases which had been heard and determined and over which this court had acquired jurisdiction by appeal before the effective date of the new legislation. In this case the order allowing the claim was entered February 7, 1949, and jurisdiction of the cause acquired by this court by service and filing of notice of appeal (Ch. 119, § 2, Oregon Laws, 1943) on April 6, 1949, more than three months before the effective date of the new enactments.

We are of the opinion that the legislature did not intend that the new provisions should be applied to a case of this kind, and that the Wells case is not controlling. While it is well established that a statute taking away jurisdiction should be construed to apply to pending cases, it is entirely clear that there was no general legislative intent to abolish appeals to this court in this class of cases. The expressed intent was to continue in force the right of appeal, but to limit it to those cases where there had been a plenary trial of the claim. Such a trial could be had in the first instance at the demand of either party, or, if there had been a summary proceeding in the first instance, then, in order to lay the basis for the right of appeal, the aggrieved party might cause the case to be tried anew as an action at law by filing a demand for such a trial within thirty days after the entry of the order of allowance or rejection upon the summary hearing. In the present case the latter procedure could not have been followed for there was no legislation in effect authorizing it while the case was pending in the Circuit Court. The tw.o statutes in question are to be considered as parts of one enactment. When construed together, as they should be, they can only mean that the provision abolishing the right of appeal from a summary determination should be applied in those cases only in which it was possible for the parties to avail themselves of the right to demand a plenary action after there had been a summary determination. To construe the statute otherwise would be to impute to the legislature the intention to leave a class of cases (of which this would be one) involving claims against an estate, in which there would be no right of appeal whatever. This is a result which, we think, was never contemplated.

So to hold is not inconsistent with Libby v. Southern Pacific Company, 109 Or. 449, 219 P. 604, 220 P. 1017. That case announces the geileral rule that the repeal of a law conferring jurisdiction takes away all right to proceed in actions or other proceedings pending at the time of the repeal. Applying that rule, the court dismissed the appeal because the amount involved was less than the jurisdictional amount prescribed by the repealing statute. It did this notwithstanding the fact that judgment had been entered in the Circuit Court before the repealing act became effective and all essential procedural steps for conferring jurisdiction on this court had been taken before the motion to dismiss was determined. The case differs from this one in two particulars: First, here this court acquired jurisdiction of the appeal before the repealing act was passed; and, second, and more important, the repealing act in the Libby case abolished the right to appeal in all cases where the amount in controversy did not exceed $250.00, whereas we' are dealing in this case with legislation which was intended to preserve the right of appeal in cases involving claims against an estate, while regulating the procedure in the probate court which must be followed by a party in order to avail himself of that right. It seems to us that it would be most unreasonable to hold that the legislature intended that these statutes should apply to a case, such as this, where that procedure could not be followed.

Carl M. Little, of Portland, argued the cause and filed a brief in pro. per. Neal E. Crounse, of Portland, argued the cause and filed a brief for respondent.

The motion to dismiss is denied.