Gordon Creek Tree Farms, Inc. v. Layne ( 1962 )

PER CURIAM.

This case is before the court on motions filed by the parties arising out of the failure of the appellants to comply with a provision of the statutes which prescribe the method of making up the record on appeal to this court.

The question is governed by the new code of appellate procedure which went into effect January 1, 1960. ORS 19.023 to 19.190. The bill of exceptions is abolished by the new code, OES 19.114, and the procedure so far as here pertinent is as follows:

At the time of filing the notice of appeal, the appellant shall file “A designation of such parts of the proceedings and exhibits as he desires to be included in the record in addition to the trial court file.”^① 19.074(2) (a) If the appellant designates less than all the testimony and all the exhibits, he must at the same time serve and file “a plain and concise statement of the points on which he intends to rely” and in such a case “the appellant may rely on no other points than those set forth in such statement.” 19.074 (2) (b) (c). “Within 10 days after the filing of the designation and the statement of points, if any, any other party may serve and file a designation of additional parts of the proceedings and exhibits to be included in the record.” 19.074 (3). “The reporter shall prepare a transcript of such parts of the proceedings as are designated” as theretofore provided. 19.074 (4).

OES 19.074 (1) reads:

“(1) In every case, the trial court file shall be transmitted to the Supreme Court as part of the record. Unless a transcript or narrative statement in lieu of a transcript is prepared as provided in OES 19.074 to 19.098, the record shall consist of the trial court file alone.”

Provisions for settling the transcript are found in OES 19.078, as follows: The transcript is required to be certified by the reporter or the trial judge and filed with the clerk of the trial court within thirty days after filing the notice of appeal. (1) With an exception not now pertinent, the appellant must serve the respondent with a copy of the transcript. (2). “(3) Within ten days after the transcript is filed, any party may move the trial court for an order to correct any errors appearing in the transcript or, where the interests of justice require, to have additional parts of the proceedings included in the transcript. Thereupon, the trial court shall direct the making of such corrections and the adding of such matter as may be appropriate and shall fix the time within which such corrections or additions shall be made.

“(4) Promptly after the expiration of ten days after the filing of the transcript, or the denial of a motion to correct or add to the transcript, or upon the making of such corrections or additions as may be ordered, whichever last occurs, the appellant shall, and any other party may, make application to the trial court for an order settling the transcript. The trial court shall enter such order and the clerk shall send a copy thereof to the clerk of the Supreme Court at Salem.”

The appellants in this case did not at the time of filing their notice of appeal serve or file any designation of such parts of the proceedings and exhibits as they desired to be included in the record in addition to the trial court file. Neither did they secure or attempt to secure an extension of time for that purpose as they might have done under ORS 19.094. Nevertheless, on December 2, two weeks after filing the notice of appeal, they served and filed a designation of the entire transcript of testimony and proceedings and all the exhibits.

ORS 19.078 clearly means that, unless the designation is served and filed at the time fixed by the statute or- within a proper extension of such time, the record -shall consist of the trial court file alone. That must be the conclusion here unless this court has the power to and should relieve from the omission.

The transcript was filed on December 5, within the time prescribed by law, and on December 21, 1960, the trial judge on motion of the appellants entered an order settling the transcript. The order recites the objection of the respondent based on appellants’ failure to malee a timely designation, and further recites that the order is without prejudice to the right of the respondent to move for a dismissal of the appeal on that ground or any other available to it.

On the same day, however, the judge allowed a motion of the respondent to strike from the record the designation served and filed by the appellants.

On December 22, the appellants filed in this court a motion for an order striking the last mentioned order and suggesting that this court either on its own motion or on the motion of the appellants enter an order “confirming the entry of the aforesaid designation in the records in the above entitled cause.”

On December 23, the respondent countered by filing a motion for an order affirming the order of the circuit court striking the designation and a further order limiting the scope of the appeal to a consideration of the trial court file only.

It should be observed in passing that the trial judge had no1 jurisdiction to strike the appellants’ designation. Since it was not filed in time, he might, for that reason, have refused to settle the transcript. "When a notice of appeal has been served and filed, the Supreme Court acquires jurisdiction of the appeal but the trial court “shall have such powers in connection with the appeal as are conferred upon it by law.” ORS 19.033(1). The trial court has certain duties and powers in connection with the undertaking on appeal, ORS 19.038, 19.040, and, as we have seen, with the preparation and settlement of the transcript. ORS 19.078. It may grant limited extensions of time for the performance of any act in connection with the preparation of the record. ORS 19.094. Under certain circumstances, it may dismiss an appeal. ORS 19.-108(2). Perhaps it has other powers, but the power to strike a designation because it is not served and filed in time is not one of them.

The order striking the designation may therefore be ignored and the respondent’s motion to “affirm” the order will be denied.

The appellants’ motion includes a recital that the appellants are “uncertain” as to whether ORS 19.033 or 19.108 applies. The motion is supported by an affidavit of one of the attorneys for the appellants setting forth facts by way of excuse for the appellants’ failure to file a timely designation. These facts are, in substance, that there was a delay in delivery of the transcript by the court reporter as the result of which the attorney was unable to determine by the time the notice of appeal was filed whether it was necessary to bring all the testimony to this court for a proper prosecution of the appeal or whether a portion of the testimony would suffice, and “the press of legal and personal affairs.”

We are of the opinion that the motion of the appellants should be treated as an application to be relieved from their default. Such an application is not authorized by ORS 19.108(1) which empowers this court to have a defective record corrected. This section is in substance the grant of the old “diminution of the record” power. It is a substitute for former ORS 19.110. See Leavengood v. McGee, 50 Or 233, 236, 91 P 453.

If this court has the authority to relieve from the appellants’ default, that authority is to be found in ORS 19.033(3), which reads:

“(3) After the Supreme Court has acquired jurisdiction of the cause, the omission of a party to perform any of the acts required in connection with an appeal, or to perform such acts within the time required, shall be cause for dismissal of the appeal. In the event of such omission, the Supreme Court, on motion of the respondent or, after notice, on its own motion, may dismiss the appeal if in its judgment the omission is without reasonable excuse or it may permit the party responsible for the omission to rectify the omission, by amendment or otherwise, on such terms and within such time as may be just.”

Under the f ormer procedure, if a bill of exceptions was not presented within the statutory time, this court was powerless to grant relief and the appellant lost the right to bring the testimony here and have a review on the merits. This was a source of dissatisfaction to the profession, to litigants and to the court. See Williams v. Ragan, 174 Or 328, 143 P2d 209; State v. Reyes, 209 Or 595, 597-607, 303 P2d 519, 304 P2d 446, 308 P2d 182. One of the purposes of enactment of the new appellate code was the amelioration of this situation in accordance with the latter-day view that the procedural sins of attorneys should not necessarily be visited upon their clients. As we construe ORS 19.-033(3), it has given the Supreme Court plenary power to relieve from an untimely performance of any of the required acts except only the .serving and filing of the. notice of appeal which, it is expressly provided, is jurisdictional and may not be waived or extended. 19.033 (2). Relief may be granted in the court’s discretion even though there be no “reasonable excuse” for the omission. The court should grant relief if there is a reasonable excuse; it may do so in the absence of such an excuse if it deems the ruling in the interest of justice. This construction seems to accord with that of the Legislative Interim Committee which drafted and sponsored the measure and is fairly within the language of the section. See Report of Legislative Interim Committee on Judicial Administration, Part I, January 1, 1959, p. 77.

The facts stated in the affidavit of the attorney for the appellants do not constitute a “reasonable excuse.” If the attorney was unable to determine how much of the testimony he needed for the purposes of the appeal until he had received a copy of the testimony, he could and should have applied to the circuit court for an extension of the time under ORS 19.094. The lawyer’s stock excuse, “the press of legal and personal affairs”, is scarcely to be taken seriously.

Nevertheless, we exercise our discretion to grant the appellants the relief sought. We are moved to do so because the transcript was filed within the time specified in the statute and so there has been no undue delay in the prosecution of the appeal, and because the present code of appellate procedure is a comparatively new law. The designation, therefore, will be treated as though it had been timely filed.

Having said this much, we hasten to add that this ruling is not to be taken as an invitation to attorneys to disregard the statute or to hold its mandatory provisions lightly. They are intended to be strictly followed and the court expects members of the profession to govern themselves accordingly. Unlike the former statutes prescribing appellate procedure, the provisions of the new code are simple, expressed with admirable clarity and are easily complied with. It is difficult to conceive of an adequate excuse for an attorney to misunderstand their meaning or to fail to follow their directions.

The respondent’s motion is denied. The appellants’ motion is allowed.

① ORS 19.005 contains the following definitions:

“(3) ‘Trial court file’ means all the original papers filed in the trial court whether before or after judgment, including but not limited to the summons and proof of service thereof, pleadings, demurrers, motions, affidavits, depositions, stipulations, orders, the judgment, the notice of appeal and the undertaking on appeal.

“(4) ‘Transcript’ means the transcript of the court reporter’s report as provided in ORS 8.340, 8.350, and 8.360.

“(5) ‘Record’ or ‘record of the case’ means the trial court file and any transcript, narrative statement and exhibits.”