State v. Rosser , 162 Or. 293 ( 1939 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is a motion to dismiss an appeal from a judgment of conviction in a criminal case. The facts are as follows: The defendant, Albert Earl Rosser, was convicted in Polk county of the crime of arson and on August 12, 1938, was sentenced to imprisonment in the Oregon state penitentiary for a term of 12 years. On August 23, 1938, he filed in the office of the county clerk of said county a notice of appeal with proof of service duly indorsed thereon by the district attorney and by the county clerk.

Section 13-1220, Oregon Code 1930, which applies to appeals in criminal cases, provides that:

"Upon appeal being taken, the clerk of the court where the notice of appeal is filed, must within 30 days thereafter, or such further time as such court, or the judge thereof may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment roll to the clerk of the supreme court."

No certified copy of the transcript or any of the documents mentioned in the foregoing statute were transmitted to this court within the thirty days allowed by law, nor was any application for an extension of time for the filing of the transcript made or allowed by the court or judge thereof. On the contrary, an affidavit, filed on behalf of the defendant, shows that a transcript of the evidence had been ordered and that a bill of exceptions was to be prepared and settled before the transcript was to be transmitted and filed in this court. Notwithstanding this, the defendant contends that, under the statute, it was the sole duty of the clerk of the trial court, and not of the defendant, to transmit these papers to the clerk of this court.

Upon this question, in State ex rel. v. Estes, 34 Or. 196,210, 51 P. 77, the court said:

"Such requirement does not relieve the appellant from the necessity of showing that the failure of the clerk to file the transcript within the time prescribed by law was not imputable to him."

This rule was quoted with approval in State v. Williams,55 Or. 143, 145, 105 P. 716, where the court said:

"* * * Tested by this rule, it will be seen that if, within five days from filing the notice of appeal, the papers on file in this cause in the office of the clerk of the trial court had been examined, it would have been ascertained that the original bill of exceptions, which was to have been sent up, had not been transmitted, and upon such discovery an order could undoubtedly have been secured, extending the time in which to file the transcript."

Again, in State v. Dickerson, 55 Or. 390, 392, 106 P. 790, in a decision written by Mr. Justice McBRIDE, the court said:

"It does not appear that the clerk was even requested to send up the transcript or that his attention was directed to it in any way, nor was any effort made within the five days to have the time for filing the transcript extended. The sole excuse offered is that counsel was waiting to have the bill of exceptions settled. The very fact that an unsigned bill of exceptions was among the papers on file in his office, would probably induce the clerk to believe that the transcript was not yet ready for transmission to this court."

The court then applied the rule, saying:

"This case is fairly within the rule announced by this court in State v. Williams, 55 Or. 143, 105 P. 716, and must be dismissed."

Referring again to this same section and to the duty of the clerk in respect to the transmission of these papers, this court, in State v. Keeney, 81 Or. 478, 159 P. 1165, said:

"Under this section we have frequently held that, unless the failure to file the transcript within the time prescribed by law was shown to be due to the negligence of the clerk, the appeal would be dismissed:"

citing in support thereof State v. Williams, supra, State v.Dickerson, supra, State v. Douglas, 56 Or. 20, 107 P. 957, andState v. Webb, 59 Or. 235, 117 P. 272. The above quotation fromState v. Keeney, was quoted with approval and applied in Statev. Fehl, 147 Or. 290, 292, 32 P.2d 1013.

Again, in a later decision in State v. Keeney, 82 Or. 400,161 P. 701, where the defendant filed another transcript predicated on the first notice of appeal and claimed the right to do so under a stipulation that the appellant should have ten days' additional time within which to file his transcript and tender a bill of exceptions, the court, speaking through Mr. Justice HARRIS, said:

"* * * Even though it be assumed that the time for filing the transcript could be extended by the stipulation of the parties without an order of the court, nevertheless the defendant is in no position to claim any benefit from the stipulation, for the reason that the transcript was not filed until more than 10 days after March 21. The proposed bill of exceptions was not even tendered until April 5, 1916. However, this court has held in Davidson v. Columbia Timber Co., 49 Or. 577, 91 P. 441, cited with approval in State v. Douglas, 56 Or. 20, 107 P. 957, that the parties cannot by a stipulation effect an extension without an order of the court. The delay was not the fault of the clerk, and as said in State v. Morgan, 65 Or. 314, 316, 132 P. 957, 958:

"``After the expiration of the time allowed by the statute for filing copies of the documents required, neither the Circuit court nor this court has authority to make an order nunc pro tunc extending the time, or to change the statute by granting a different right of appeal than as provided for by the statute.'

"There is no alternative except to dismiss the appeal; and it is so ordered."

To the same effect, see Hill v. Lewis, 87 Or. 239, 170, P. 316.

Again, in Hay v. Yokell, 147 Or. 148, 32 P.2d 578, this court, speaking through Mr. Justice BAILEY, said:

"This court, in Kelley v. Pike, 17 Or. 330, 20 P. 685, after calling attention to the provision of the above statute authorizing the court to extend, by order, the time within which to file the transcript, and pointing out that the statute requires such order to be made ``within the time allowed to file the transcript', said:

"``In view of the latter provision, this court would hardly undertake to hold that it had authority after the expiration of the time there specified to enlarge the time for filing the transcript. A court can not create jurisdiction for itself; it must be conferred by law, and the mode pointed out whereby it may be acquired must be substantially complied with, in order to obtain it. We would have as much right to enlarge the time for the service of the notice of appeal as we would have to enlarge the time for filing the transcript after the time specified in the code had expired. It would be extra-judicial in either case.'"

The same rule applies to appeals in civil cases. Section 7-507, Oregon Code 1930, governing such appeals, provides that:

"Upon the appeal being perfected the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript, etc."

Under this section, it has been uniformly held that, where this requirement of the statute has not been complied with, this court has no jurisdiction to review the judgment or order appealed from and that the appeal must be dismissed for lack of jurisdiction. See Kelley v. Pike, supra; McCarty v. Wintler,17 Or. 391, 21 P. 195; Nestucca Wagon Road Co. v. Landingham,24 Or. 439, 33 P. 983; Connor v. Clark, 30 Or. 382, 48 P. 364; and Davidson v. Columbia Timber Co., 49 Or. 577, 91 P. 441. InWestern Loan Co. v. Sphier, 93 Or. 677, 184 P. 496, this court, speaking through Mr. Chief Justice McBRIDE, said:

"The filing of a transcript in the supreme court within the time allowed by law, or within any extension of that time, is jurisdictional and this court has no power to excuse a default in that respect."

However, the defendant contends that the rule to which we have referred is not applicable in the instant case for the reason that, after the expiration of the 30-day period but within the sixty days allowed by law for the taking of an appeal, the defendant served and filed a second notice of appeal and caused the transcript to be transmitted to the clerk of this court within thirty days thereafter.

It is well settled in this state that where an appeal has once been perfected, the right to take a second or further appeal from a judgment or order of the circuit court is at an end. InSchmeer v. Schmeer, 16 Or. 243, 17 P. 864, it was held that:

"When a party perfects an appeal and then abandons it, his right of appeal is exhausted, the power over the subject is functus officio, and cannot be exercised the second time."

To this effect, see Columbia City Land Co. v. Ruhl, 70 Or. 246, 134 P. 1035, and cases there cited, and McKinney v.Nayberger, 138 Or. 203, 295 P. 474, and cases cited. In the case last cited, Mr. Chief Justice BEAN said:

"It is well settled that when a party abandons an appeal by allowing the time in which the transcript may be filed to expire without having filed such transcript, the appeal will be dismissed as abandoned: (citing authorities). Nevertheless, until an appeal is perfected, it may be abandoned and a new appeal taken: Van Auken v. Dammeier, 27 Or. 150, 40 P. 89; Holladay v. Elliott, 7 Or. 483."

The rule that where an appeal has been taken, no second or subsequent appeal may be taken from the same judgment or decree, applies only where the appeal has been perfected and has no application where, because of a defect in the first notice of appeal, the attempted appeal was insufficient to confer jurisdiction upon the appellate court. Illustrations of attempted appeals not perfected, where second appeals were allowable, are to be found in the two cases last cited and inSchmeer v. Schmeer, supra, Fisher v. Tomlinson, 40 Or. 111,60 P. 390, 66 P. 390, and Rohrbacher v. Strain, 95 Or. 1,176 P. 990, 186 P. 583.

The defendant contends that the first notice of appeal served and filed in this case was so defective as to bring this case within the exception to the general rule to which we have just referred. This contention, we think, cannot be sustained. The first notice of appeal, omitting the title of the court and cause in which the judgment was rendered, reads as follows:

"TO THE STATE OF Oregon, TO I.H. VAN WINKLE, Attorney General for the State of Oregon, and TO BRUCE SPAULDING, District Attorney for Polk County, Oregon, and OSCAR HAYTER, Assistant District Attorney, and TO C.S. GRAVES, Clerk of Polk County, State of Oregon:

YOU AND EACH OF YOU will please take notice that the defendant, Albert Earl Rosser, does hereby appeal unto the Supreme Court of the State of Oregon from that certain judgment of conviction and the sentence of twelve years in the Oregon State Penitentiary imposed thereon, and the whole thereof, and each and every part thereof, made and entered in the above-entitled court and cause on the ____ day of August, 1938.

Dated at Polk County, Oregon, this 23rd day of August, 1938.

C.W. Robison, One of attorneys for defendant."

From this and the indorsements thereon which we have not copied, it will be seen that the first notice of appeal, in conformity with section 13-1213, was signed by one of the defendant's attorneys and notified the district attorney and the county clerk, who were the only parties necessary to be notified, that the defendant appealed from the judgment of conviction and the sentence of twelve years in the Oregon State Penitentiary made and entered in the above entitled court and cause on the ____ day of August and, from the indorsements thereon, it appears that the notice of appeal was served upon the district attorney and county clerk, as required by section 13-1209 and section 13-1210, Oregon Code 1930, and was then filed in the office of the county clerk on August 23, 1938, within the time allowed by law to take an appeal.

The defendant contends that, because the date of entry was left blank, only the month and year being stated, the appeal was never perfected and, therefore, that he had a right to file a second notice of appeal.

The second notice of appeal, which was served upon the same parties and filed in the same court, was an exact copy of the first notice of appeal with the sole exception that the date which had been left blank in the first notice of appeal was inserted, namely: "the 12th day of August, 1938".

As said by this court in State v. Keeney, 81 Or. 478,159 P. 1165:

"* * * In criminal cases, there being no undertaking for costs required, the appeal becomes perfected by serving and filing with the clerk a notice of appeal".

Hence, this appeal was perfected unless the failure in the first notice to include the date of entry of the judgment appealed from is fatal and rendered the appeal void.

Upon this question, the defendant relies upon Rohrbacher v.Strain, supra. In that case the only description in the notice of appeal of the judgment appealed from was that the plaintiff "appeals * * * from the judgment and decree made and entered in the above-entitled court and cause on the 17th of June, 1918, and the whole thereof", when there was in fact no judgment or decree entered on that day but one was entered on a different day and, since the notice of appeal was insufficient to identify the judgment, the first notice of appeal was rightfully dismissed. However, a second appeal was taken in that case within the time allowed by law and a decision was rendered on the merits upon the ground that the first notice of appeal was insufficient and invalid because not containing such a description of the judgment appealed from as would identify the judgment from which an appeal was sought.

In the instant case, however, the notice of appeal contains a complete statement of the nature of the action, the parties, the title of the court and the sentence pronounced, by which the judgment appealed from may be identified and, for that reason, the date of its entry was not necessary to be stated therein. This conforms to the ruling of this court in State v.Hanlon, 32 Or. 95, 48 P. 353, where it was held that a notice of appeal which states the nature of the action, the parties, the title of the court and the sentence pronounced, is sufficient to confer jurisdiction, although it fails to designate the time when said judgment was rendered.

As said in Moon v. Richelderfer, 56 Or. 246, 108 P. 178:

"When an appeal is perfected, it cannot be abandoned thereafter and a second appeal taken. The right of appeal is lost if the transcript is not filed within the time allowed by law or an extension thereof. This is jurisdictional. (Citing authorities)."

Under the settled law of this state as shown by the decisions above referred to, this court has no alternative except to dismiss the appeal, and it is so ordered.

LUSK, J., did not participate in this opinion.

Former order dismissing appeal set aside, and appeal reinstated March 7, 1939 ON ORDER REINSTATING APPEAL (87 P.2d 783)