Judges： Bailey, Campbell, Rossman, Belt
Filed Date： 3/26/1935
Status： Precedential
Modified Date： 11/13/2024
The decree dismissing this suit was entered in the circuit court for Marion county on June 29, 1934. Thereafter, on July 10, 1934, a notice of appeal signed by "Guy E. Kelly, attorney for applicants and appellants", with postoffice address at Tacoma, Washington, was filed in said court, with acknowledgment of receipt of a copy thereof on said date by one of the attorneys for the defendant.
In due time the transcript and appellants' abstract and brief were filed with the clerk of this court and on September 28, 1934, the attorney general and his assistant, representing the insurance commissioner, filed here respondent's brief.
At the time set for the argument, this court sua sponte
questioned its jurisdiction to hear the appeal, on the ground that the notice of appeal had not been *Page 674
signed by either of the plaintiffs or by an attorney duly admitted to practice in the courts of this state, based upon the decision in the case of In re Nelson's Estate,
It is admitted that the individual who signed the notice of appeal and appeared here as representative of the appellants has not been admitted to practice law in this state, although he asserts that he is a duly admitted and regularly practicing attorney of the state of Washington and has been admitted to practice in other states.
In the instance of In re Estate of Nelson, supra, an attempt was made to appeal from the county court to the circuit court, with the notice of appeal signed by a regularly admitted and practicing attorney of the state of Washington, and the appeal was dismissed by the circuit court on the ground that the notice was not signed by the appellant or by any attorney authorized to practice law in this state. On appeal to this court the circuit court's order of dismissal was affirmed. This court there based its decision on §§ 550, 1074, 1076, 1081 and 1093-1, Oregon Laws, which sections are now, respectively, §§ 7-503, 32-101, 32-103, 32-108 and 32-503, Oregon Code 1930.
Section 7-503, supra, provides that in case appeal is not taken at the time the decision, order, judgment or decree is rendered, the party desiring to appeal shall "cause a notice, signed byhimself or attorney, to be served upon the adverse party" or his attorney. An attorney is defined by § 32-101, supra, as "a person authorized to appear for and represent a party in the writtenproceedings in any action, suit or proceeding in any stage thereof". An attorney who does not represent *Page 675 a party in the "written proceedings" may appear and represent the party in court, in which event "he is known in the particular action, suit or proceeding as counsel only": § 32-101, supra. Any one who has been admitted by the supreme court to practice law in this state may act in the capacity of attorney: § 32-103, supra. "When it appears that a person of any other state or country is an attorney of the highest court in such state or country he may appear as counsel for a party in any action, suit or proceeding in court * * * but not otherwise:" § 32-108, supra. Section 32-504 declares that it shall be unlawful for any one to engage in the practice of law in this state "without first having been duly admitted and licensed as an attorney at law in the courts of this state". [Italics ours.]
For our present purpose we shall assume that the individual representing himself to be attorney for the appellants was duly admitted to practice law in the state of Washington, but he has never applied to, or been admitted to, practice law in this state. He was, therefore, at the time of appearing here, not an attorney within the meaning of the sections of our code above referred to, "authorized to appear for and represent" the appellants as an attorney in signing the notice of appeal, or in other proceedings in this court. He might have acted as counsel only, which office would not have authorized him, under the sections already mentioned, to sign the notice of appeal as attorney on behalf of the appellants.
An appeal to this court from the circuit court is a new proceeding: Shirley v. Birch,
Ordinarily, the precedent of In re Estate of Nelson, supra, inasmuch as that decision has not been questioned during the years, some 14, since it was rendered, should be considered conclusive of the question now before us, unless it is wrong in principle and out of harmony with the great weight of authority in other jurisdictions. In the case at bar it is not contended that the Washington attorney was in any way associated in the circuit court with an attorney duly admitted to practice law in Oregon, nor is the contention made that notice of appeal was actually served by any person who was an attorney of this court and who was representing the appellants on this appeal but had omitted to sign his name on the notice of appeal, or that a resident attorney was in any way associated with the nonresident attorney.
In the case of North Laramie Land Company v. Hoffman,
The nonresident attorneys in that case had prepared and sent to the local attorney who was associated with them in the case the petition in error, and the latter attorney neglected to sign it but filed it and filed with it an application for the clerk of the district court to transmit to the supreme court certain original papers, and in addition filed a "praecipe for summons in error". At the time of presenting the papers for filing he requested the clerk to enter his name on the records of the supreme court as attorney for plaintiff in error. The court, under the statute providing for amendments, permitted the petition in error to be amended by adding the name of the resident attorney. In passing upon this matter, the court said: "The petition in error not having been subscribed by any one having authority to subscribe it, it stood as an unsigned petition. But by the clear weight of authority, under our and similar code provisions, a petition not signed or improperly signed, whether it be a petition to commence a civil action or a petition in error, is not a nullity, and the failure to properly subscribe the same is merely a formal defect, which may be waived, or may be cured by amendment; and to correct a mere matter of form, an amendment of a petition in error may be allowed even after the expiration of the time for bringing the proceedings": citing numerous authorities.
In referring to its former decision in the same case, the court observed:
"It is alleged in the petition for rehearing, and contended in support thereof, that this court erred in deciding that the petition in error was not sufficient to constitute the commencement of proceedings in error, or to give the court jurisdiction of the subject matter of the action. The correctness of the decision that a *Page 678 non-resident attorney who has not been admitted to practice in this state either generally or specially in the particular cause can not properly sign alone a petition in error, and that a petition so signed is defective, is not directly or specifically challenged, nor would we feel inclined to recede from the decision on that point."
Had it not been for the fact that a local attorney was associated with the nonresident attorneys in that instance, the "defective" petition in error could not have been amended. In such case there would have been nothing to amend.
This court, speaking through Mr. Chief Justice BURNETT, in the case of Lee v. Gram,
"It is said in Section 548, Or. L.: ``A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise.'
"The conditions established by that legislation include the service of the notice of appeal, the giving of an undertaking (Section 550, Or. L.); and the filing of a transcript (Section 554). As the supreme court is a court of limited jurisdiction, a party desiring to appeal must at his peril frame the papers necessary to his appeal as required by the statute; for ``not otherwise', in the language of Section 548, can this court acquire authority to decide the questions involved in an appeal. The party appealing must himself without aid from this court supply the documents necessary to his appeal. Being without jurisdiction until he does so, we can not reach out an aiding hand and help him into court. It follows, therefore, that we can not give permission to the plaintiff here to amend her notice of appeal, for the reason that such action is beyond our power. The plaintiff's motion to amend the notice and the undertaking must therefore be overruled." *Page 679
The court proceeded, however, to state that in 1899 the legislature had provided what should be contained in the notice of appeal, and that the court could not require more. The opinion further said that the court would consult the record in order to determine the date when the judgment was entered, and a mere mistake in the notice of appeal concerning the date would not vitiate the appeal.
Beginning with the case of Oliver v. Harvey,
The opinion in Oliver v. Harvey, supra, cited as its only authority the case of Bonds v. Hickman,
"It is provided by section three hundred and thirty-three of the Practice Act, that ``a judgment or order in a civil action, except when expressly made final by this Act, may be reviewed as prescribed by this title, and not otherwise;' and section three hundred and thirty-seven provides that an appeal shall be taken by filing with the Clerk of the Court in which the judgment or order is entered, a notice of appeal, and serving a copy thereof upon the adverse party or his attorney. That is the only mode prescribed by the Act in which an appeal to the Supreme Court can be taken. The filing of the notice of appeal is indispensable, in order to enable the appellate Court to obtain jurisdiction of the cause. (Hastings v. Halleck,
That court then proceeded to state that "admitting the necessity of filing the notice of appeal as an essential part of the appellate proceedings by which the appellate court acquires jurisdiction, the real question is what is competent evidence in this court to prove or disprove the filing of the notice". It appears from the law of California as it then existed that the notice and endorsement formed a part of the record in the trial court and that neither the notice nor the endorsement had "any place as original papers in the appellate court". It was provided that either a copy of the notice with endorsement thereon might be certified by the clerk of the trial court to the appellate court, or a certificate of the attorneys was permitted to take the place of the official certificate of the clerk, and the parties might "substitute a brief statement of the notice and its filing in the place of complete copies". If this alternative was chosen, the certificate of the attorneys was to have the same value and be "entitled to the same effect as evidence" as though complete copies were certified by the clerk.
In that instance the parties stipulated that "notice of appeal was admitted as duly filed and served, also the filing of appeal bond, insertion of copies waived". The respondent moved "that the appeal be dismissed on the ground that the court had no jurisdiction of the case, because, as he alleged, no notice of appeal was filed". This motion was based on a certificate of the *Page 681 clerk of the district court and an affidavit stating that in fact no notice of appeal was filed. It was held that if the stipulation was entered into by respondent under a mistake of fact, as was alleged in his affidavit, and its operation was injurious to him, doubtless it was competent for the lower court, upon application, to relieve him from it, but that the supreme court was powerless so to do, because the original stipulation was filed in the trial court and the appellate court could not amend the documents constituting the transcript.
The opinion of the California court amply supports the decision of this court in Oliver v. Harvey, supra.
In 3 C.J. 1230, § 1333, it is said: "The notice of appeal must be served on the adverse party or parties or their attorneys, or on the clerk of the court, or on both, as required by the statute, and in the mode prescribed, and such service is generally essential to appellate jurisdiction." Section 1336 in the same volume is in part as follows: "As a general rule, when a statute or valid rule of court requires service and filing or entry of a notice of appeal at or within a prescribed time, as during the term, before, at, or after rendition or entry of judgment, or within the time limited for appeal, etc., a compliance with the statute in this respect is essential * * *." See also 3 C.J. 1249, § 1363.
California has been referred to and cited as one of the states in which the appellate court acquires jurisdiction by voluntary appearance as well as by service of notice of appeal. In this connection attention is directed to 2 Cal. Jur., § 117, reading as follows:
"It is well established that an appellate court may obtain jurisdiction of an appeal as well by voluntary appearance by an adverse party as by service of notice of appeal upon him. The requirement that notice of appeal be served upon the adverse party is for the protection of such adverse party, and the service of the *Page 682 notice, like service of a summons, may be waived by him or his attorney, and is waived by a voluntary appearance. A mere waiver of service, however, is not effectual unless followed by some act equivalent to an appearance by which the party would be bound by the judgment of the court. As the omission to serve an adverse party goes to the jurisdiction of the appellate court, a failure to raise the objection until petition for rehearing filed does not waive the objection, there being no appearance by the party not served.
"The service of notice of appeal has a twofold purpose — first, to give the appellate court jurisdiction of the person of the respondent, and, second, to give it jurisdiction of the subject matter of the appeal; and since jurisdiction over the subject matter can never be conferred by consent, the voluntary appearance of the respondent must be made within the time in which service of notice upon him would be effectual to vest jurisdiction of the appeal in the appellate court. To authorize an appearance to be made thereafter would be to confer jurisdiction by consent. * * *"
Reverting to our own state, we find in Baskin v. MarionCounty,
In Estate of Dixon,
"This court has gone a long way in sustaining appeals wherein the notice is not technically correct. See Holton v. Holton,
"The notice of appeal is the first step to be taken in reaching this court. Until that is served and filed, complying substantially with the statute, the appealing party has no right to file a transcript or any other paper. If he does so, it is so much waste paper. We have gone to the very limit of logic in the cases above mentioned, but to hold this notice sufficient would be to say, practically, that the requirements of the statute may be one by one disregarded, and that we must travel afield and search in the transcript to find out what the party intends by his notice of appeal. We decline to go further in this direction. An appeal is not a constitutional right, but a statutory privilege. The legislature has authority to prescribe the conditions upon which it may be taken, and we decline to disregard those conditions."
Although adjudications from other jurisdictions construing statutes similar to the Oregon code sections under consideration have not come to our attention, it may be helpful to refer briefly to decisions from other states on kindred questions. InHarkins v. Murphy Bolanz,
The court in Clifton v. Carson Naval Stores Company,
The Idaho supreme court in Anderson v. Coolin,
In Ellis v. Bingham County,
To the same effect as the last decision are the cases of Bricev. Chapman,
The court in Elson v. Sullivan (Iowa)
In some states the giving and serving of a notice of appeal are matters regulated by rules of the appellate court. Such appears to be the case in Indiana: Archey v. Knight,
The supreme court of Oregon is not a court of original jurisdiction, except that in certain matters it may, in its own discretion, assume jurisdiction: article VII, section 2, state constitution. The case at bar does not fall within the list of exceptions. As this is a court of appellate, and not original jurisdiction, its authority is limited by the organic act and laws of the state.
On the other hand, the circuit court is one of original jurisdiction. When it has jurisdiction of the subject matter it acquires jurisdiction over the person by certain designated proceedings prescribed by law. One of those methods is by the personal service of summons: §§ 1-501 to 1-505, inclusive, Oregon Code 1930. But voluntary appearance by the defendant is equivalent to the personal service of summons upon him: § 1-517, Oregon Code 1930. There is no limitation as to the time within which a suit or action may be brought in the circuit court or the time within which the summons may be served or the defendant may make a voluntary appearance, so far as the jurisdiction of the circuit court is concerned. True, the defendant may interpose the defense that the suit or action is not brought within the period provided by law. That defense, however, is personal to him and does not affect the jurisdiction of the court. *Page 686
To contend that the notice of appeal so far as this court is concerned answers the same purpose as a summons in the circuit court is to overlook the distinction in the nature of the jurisdiction of one court from that of the other.
In the case at bar no appearance was made by the respondent in this court until long after the expiration of the sixty-day period in which the appellant had to give notice of appeal. To contend that such an appearance — whether voluntary or otherwise — conferred jurisdiction upon this court would be to ignore the plain mandate of our constitution and the laws enacted in pursuance thereof relating to the jurisdiction of this court. It would also overrule every decision of this court in which the question has been considered. We do not want to be understood by what is said here, however, to mean that a voluntary appearance at any time would obviate the necessity of a compliance with statutory requirements.
Attention has already been directed to, and an excerpt hereinbefore quoted from, 2 Cal. Jur., § 117, to the effect that appearance must be made by respondent within the time in which service of notice of appeal is required, in order to waive the service of notice and to confer jurisdiction upon the court. That part of the excerpt was taken almost verbatim from the case ofBell v. San Francisco Savings Union,
In Indiana, where the court's procedure seems to be somewhat liberal, in construing general appearance as a waiver of service of notice of appeal, the court in National Surety Company v.Button,
"Finally, appellant contends that mere irregularities in notice are waived by submission without objection. *Page 687 The failure to move to dismiss an appeal until after the submission of the cause to the appellate court, and the filing of the brief upon the merits of the action, can not serve as a waiver or a bar to the dismissal of the appeal. Michigan, etc., Ins. Co. v. Frankel, supra. The legislature has prescribed the steps necessary to an appeal, and by the provisions made the courts are bound."
The supreme court of the United States in Radford v. Folsom,
No attempt here is made to review all the authorities on the question of waiver of failure to give proper notice by the appellee or respondent's voluntary appearing. We have, however, found no case holding that where the statute requires the appeal to be taken within a definite time, a voluntary appearance by appellee or respondent thereafter conferred jurisdiction on the appellate court to hear the cause.
The circuit court of this state is a court of original and general jurisdiction, as above pointed out, whereas the supreme court has limited and appellate jurisdiction. In the event that the pleadings filed with the circuit court are not verified or signed by the attorney or the litigant, the opposing party may, on motion, have the pleadings stricken from the files: § 1-910, Oregon Code 1930. But the party whose pleadings are so stricken may be permitted to plead over, thereby curing the defect.
The question as to the effect of pleadings filed by an attorney not admitted to practice in the jurisdiction, or by an attorney who has not complied with certain requirements of law, has arisen several times in relation *Page 688 to nisi prius courts. In the case of DesBrisay v. Mackey, 12 New Brunswick Rep. 138, the supreme court of New Brunswick was required to pass upon the effect of an act providing that no attorney should be allowed to practice in that court after a certain date, who had neglected to make certain payments toward providing and maintaining a law library. There were called to the court's attention in that instance many English statutes prohibiting the practice of attorneys and solicitors who had not taken out certain annual certificates. The English statutes referred to all or practically all provided that in case the attorney should practice without first obtaining a certificate, he should forfeit a certain amount for each offense and should not be allowed to collect any fees during the time in which he was remiss. The English courts in construing those enactments held that the acts of the attorney while in default would not vitiate the proceedings taken by him, as the punishment was to be imposed upon him and not his clients.
Since the New Brunswick law did not contain provisions as to forfeiture and loss of fees, but was merely prohibitory, the supreme court of that province held that the practice of the attorney was illegal "and his proceedings consequently irregular".
These British cases, so far as we can see, have no bearing upon the question now before us. The attorney by failure to comply with the law does not have his name stricken from the rolls and the punishment is meted out to him and not to his clients.
In the case last above cited, the court, in distinguishing between the English statutes and the New Brunswick law, stated:
"If the English statutes had used prohibitory words only against unqualified attorneys practicing, it may *Page 689 well be doubted whether they would have received the construction that has been given them; but when they declare in addition that an attorney shall not recover any fees for prosecuting or defending actions while he is uncertificated, it seems to imply that the legislature did not intend that the proceedings themselves should be irregular, but, as said by Best, C.J., that they intended to inflict all the punishment of the neglect upon the attorney. We have not overlooked the hardship that, by our construction of the Act, may result to the client from the employment of an unqualified attorney, of whose neglect he may be entirely ignorant; but the hardship is not greater than happens in every case where proceedings are set aside in consequence of a mistake of the attorney in omitting to comply with some rule of practice. The inconvenience of the construction, however, is no reason for departing from the plain meaning of the words of an Act."
There are many cases in which the trial court refused to dismiss the proceedings because the party appearing for the litigant had not been admitted to practice. For example, we haveRader v. Snyder,
We have referred to a few cases relating to proceedings in courts of original and general jurisdiction, only for the purpose of explaining what might be considered misleading statements when quoted without reference to the facts involved.
Reference has already been made to § 7-503, Oregon Code 1930, relating to the manner of taking appeals and the time within which they may be taken from the circuit to the supreme court. The language of this section is clear and explicit. We do not have to resort to *Page 690 technical rules of construction to understand what the legislature intended. At the very beginning of the section we are told that appeals shall be taken as therein provided "and not otherwise", and, lest we forget, the section ends with the same expression.
The first subdivision refers to the manner in which the notice of appeal shall be served and what it shall contain. The next subdivision relates to the service of the undertaking on appeal. Each of these documents forms an important step in perfecting the transfer of the cause from the circuit court to the supreme court. The first step, i.e., the serving and filing of the notice of appeal with the endorsement of service thereon within 60 days from the entry of the judgment or decree appealed from, is indispensable. Some little latitude, however, is permitted the supreme court as to the second step — the service and filing of the undertaking. When exceptions to the sufficiency of the undertaking are sustained, either as to its form or on the ground of the failure of the surety to justify, a new undertaking may be given and the former one becomes functus officio. It ceases to have any place in the record.
If we may disregard or delete the all-important word "whereas" at the beginning of the recitals of the undertaking, and thereby transform the meaning and purpose of the first paragraph of this document to something not intended by those executing or receiving the same, then we are engrafting upon our jurisprudence a novel rule of construction. We are saying that what was intended as a mere bond for costs has by some magic become two instruments, to wit: a notice of appeal and an undertaking, all in one.
The undertaking in the case at bar is not substantially different from practically all undertakings on appeal, especially those of surety companies. What a *Page 691 saving it would be to the appellant to dispense entirely with the notice of appeal and merely use the printed form of undertaking found in all law offices. Better yet, dispense with both the notice and the undertaking and place the duty on this court to ascertain if there is language in any of the briefs indicating that the appellant had in mind an intention to appeal. If we can not justify this last suggested procedure by reason or logic based on the statutes, recourse can always be had to supposition. In any case it is possible to imagine dire results that could befall the litigant, if we were not disposed to disregard compliance with any particular rule of court or procedure.
There still remain three branches of the government. To the legislative department is entrusted the duty to enact laws conferring the right of appeal and regulating the manner of exercising that right. These laws should be respected by the courts.
From what has been said above it is apparent that the conclusion reached by this court in the case of In re Estate ofNelson, supra, was not only correct but inevitable. An appeal notice signed by an attorney from another state, who is not admitted to practice in Oregon, can not be of any more effect in conferring jurisdiction upon this court to hear the cause than would be a notice signed by any layman not in anywise connected with the litigation. The court takes judicial knowledge of the attorneys regularly admitted to practice before it. It has disciplinary control over them, and when they appear as representing litigants it is presumed by the court that they have authority so to do.
Under § 32-108, supra, an attorney from another state can be regularly admitted to practice in this state as an attorney, provided that the state of which he is a resident or citizen "admits to its bar, and to practice *Page 692 in its courts, attorneys who are citizens of this state". Under the laws of Washington and the rules of its supreme court an attorney who is a citizen of this state can not be admitted to practice in its courts: Vol. 2, § 139-4, Remington's Rev. Stat. of Washington; Rule 2, Rules of Admission of the Supreme Court approved October 30, 1933.
We see no reason for disregarding the plain provisions of the Oregon statutes or in overruling and casting aside the prior decisions of this court on the subject now before us. Therefore, the appeal should be dismissed.