State v. Archerd

The majority bases its conclusion that section 13-1209, Oregon Code 1930, requires one convicted in the circuit court of a crime to hand to the county clerk a copy of the original notice of appeal and obtain from him an acknowledgment of service or prove service in some other manner (except the proof supplied by the presence of the original in the county clerk's files) upon two premises: (1) our codes of criminal and civil procedure are not alike; and (2) the doctrine of stare decisis. No effort whatever is made by the majority to show that the construction which they have placed upon section 13-1209 serves either reason or justice.

Let us see whether the fact that our codes of criminal and civil procedure are different demands the conclusion which the majority has reached. They stress the fact that Judge Deady served upon the commissions which prepared both of these codes, and, after pointing out that there exists a difference between the two, conclude that the legislature which enacted them intended that one who appealed a criminal case should pursue a course different from that of one who appealed a civil case. Such reasoning can bring but scant satisfaction to a court for denying the privilege of an appeal to a citizen convicted of a crime. It is reasonable to conclude that when the legislature enacted section 13-1209 it intended that the appellant should address his notice of appeal to the county clerk, serve it upon the district attorney and then file it with the county clerk. Had section 13-1209 not been enacted there would have been no requirement in our code that the notice of appeal must be filed in the county clerk's office.

The majority depends much upon the doctrine of stare decisis. Their reliance upon that rule indicates strongly that they have found but little reason otherwise for the construction which they have placed upon section 13-1209. In an effort to show that we are bound by the law of precedents, they cite State v. Horner,36 Or. 68 (59 P. 549); State v. Blazier, 36 Or. 97 (60 P. 203);State v. Berger, 51 Or. 166 (94 P. 181); State v. Mageske,119 Or. 312 (227 P. 1065); State v. Berg, 138 Or. 30 (3 P.2d 783, 4 P.2d 628); State v. McAweeney, 138 Or. 20 (3 P.2d 783).

Before analyzing the above cases, let us remind ourselves that the majority is not applying the doctrine of stare decisis to any rule of titles, contracts, commercial paper, rules of trade, matters relating to public institutions or any similar matter where a rule announced in the past has invited people to govern themselves by it. We are concerned with a rule of practice and a change in it will destroy no rights acquired in the past. If we improve upon it, we give better protection for the future. We deem it self-evident that a precedent construing procedure law should have no greater weight than the reason which it employed, and that a mere regard for stability should not interfere with this court's efforts to administer perfect justice. To administer justice is our primary duty; to follow precedents is secondary. A decision which shows that extended consideration has been bestowed upon the cause is, of course, entitled to greater weight than ex parte decisions, those which themselves indicate error, and those which show that the matter was not adequately argued before the court.

The first of the above decisions cited by the majority (Statev. Horner) was a per curiam decision, and does not indicate that any extended reflection was bestowed upon the matter. An inspection of the files indicates that neither a printed nor a typewritten brief upon the motion to dismiss was filed by either party. It cites as authority for its conclusions Territory v.Hanna, 5 Mont. 246 (5 P. 250), and State v. Gibbs, 10 Mont. 210 (25 P. 286). In the first of these the Montana court held: "An appeal can only be taken from the district court to the supreme court by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. * * * A notice directed to the attorney prosecuting, and served upon him and filed with the clerk, is not the service of notice upon the clerk. The clerk is not presumed to know the contents of papers filed with him, addressed to other persons, and of which he is simply the custodian. The times at which, and the successive order in which the several steps are to be pursued to take and perfect an appeal, are distinctly prescribed by statute, and must be observed". In the other Montana case the court held a notice of appeal defective which was addressed to the county clerk because, although it had been served upon the clerk and the prosecuting attorney, it stated that the appellant was appealing from the verdict. Evidencing dissatisfaction with those decisions is the fact that Montana, in the adoption of its 1895 code, repealed the above statute. Although the repeal occurred five years before the decision of State v. Horner, it is not mentioned in that case. The second of the cases cited by the majority (State v. Blazier) was likewise a per curiam decision. No briefs were filed, no argument was submitted by the prospective appellant, and the court contented itself with citingState v. Horner, supra, in support of its conclusion. The third of the cases cited by the majority (State v. Berger) contains nothing which supports their view. It holds that an oral notice of appeal does not suffice. It also was a per curiam decision, and the would-be appellant presented no argument to the court. In the fourth of the decisions (State v. Mageske) the court likewise did not have the benefit of any argument by the would-be appellant when it dismissed his appeal. It cited as authorityState v. Berger but made no mention of the two earlier decisions. As we have seen, State v. Berger merely held that an oral notice of appeal does not suffice. The authority of Statev. Mageske is greatly weakened, if not destroyed, by the fact that after the decision was announced the appeal was reinstated upon stipulation of the parties, a result which could not have been accomplished if the court felt that the notice of appeal was void. The fifth (State v. Berg) and sixth (State v.McAweeney) were consolidated in this court as one. In holding the notices of appeal defective, this court cited in support of its conclusion two sections of our code of civil procedure. The majority concedes that our code of civil procedure is not applicable to our present problem, and in State v. Horner, supra, we expressly so held. It is evident that this error upon our part greatly weakens the authority of State v. Berg andState v. McAweeney. In those cases counsel for the appellants cited the civil code in support of their contentions. It is clear from the above that the matter now under consideration has never been presented to this court in a thorough manner. Decisions based upon inadequate presentation are never regarded with favor by the doctrine of stare decisis. 15 C.J., Courts, p. 942, section 333.

Let us consider what the doctrine of stare decisis actually implies. According to a writer in 37 Harvard Law Review, 409, Chamberlain's definition of the doctrine is the best (Chamberlain, Stare Decisis, 19). We now quote it: "A deliberate or solemn decision of a court or judge, made after argument on a question of law fairly arising in a case, and necessary to its determination, is an authority or binding precedent in the same court or in other courts of equal or lower rank, in subsequent cases, where ``the very point' is again in controversy; but the degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine, is in the last analysis, moral and intellectual rather than arbitrary or inflexible."

When the courts determine issues of court procedure they relax the judicially established rule of stare decisis. A change in the rules of procedure affects no rights acquired in the past in reliance upon the decisions. We quote from Judge Cardozo's volume, "The Nature of the Judicial Process" (p. 156): "The law of evidence and generally the whole subject of procedure supply fields where much improvement may properly be made with a freedom even greater. The considerations of policy that dictate adherence to existing rules where substantive rights are involved apply with diminishing force when it is a question of the law of remedies". Many instances showing the relaxation of the rule where procedural matters were involved are cited in 15 C.J., Courts, p. 944, § 339.

It will be observed from Chamberlain's definition that a decision, in order to operate as a foundation for the doctrine, should show that it was preceded by adequate argument, that it should indicate that it received deliberate attention by the court, and that it harmonizes with the spirit of the present times. The review of the above five cases shows that three of them were per curiam decisions; that in four of them no argument was presented by the prospective appellant; that one of them was subsequently reinstated by stipulation of the parties, which is a strong indication that the court reversed its previous decision; and that in the next, being the last of our decisions, we erroneously depended upon sections of the code of civil procedure. These cases surely do not indicate adequate presentation to the court, nor do they represent such deliberate, solemn pronouncements as are necessary for a foundation for the doctrine. If these decisions hold that a copy of the notice of appeal must be handed to the county clerk and proof of service must be made in some manner other than that which is afforded by the presence of the original in the clerk's files, then we are satisfied that this construction of the statute is not in harmony with the spirit of the times. In 1864 ceremonies were in favor and much idle rigmarole was tolerated with which we today have no patience. Courts conform their construction of statutes, and even of constitutional provisions, to the spirit of the times. An instance is the change in judicial attitude of courts towards constitutional provisions like that of article I, section 15, Oregon Constitution, which makes the jury the judge of the law. See Commonwealth v. Castellana, 277 Pa. 117 (121 A. 50). Further evidencing the fact that the above decisions do not conform to the spirit of the times is the fact mentioned in the opinion of the majority that many statutes, similar to ours, have been repealed. The following paragraph taken from a carefully prepared article in 33 Columbia Law Review 199, is significant: "Not only do we have the capital fact that the United States Supreme Court has formally and unqualifiedly rejected stare decisis, and has frequently exemplified its rejection, but many state courts have overruled their precedents, although in general professing to accept the rule. There is that notable statement of the court: ``Shall we stumble where they stumbled?'"

Moreover, it seems to us that the majority is committing a grave error when it holds that the court is foreclosed from further consideration of the meaning of section 13-1209. The majority is now making a precedent in the application of the doctrine of stare decisis which will embarrass us in the future performance of our judicial duties. It is unbecoming to a court to acknowledge that, although no vested rights will be disturbed, it is impossible for the court to depart from previous decisions, examine into the reason of things and proceed to do justice. When such a point has been reached and our bygone pronouncements foreclose further consideration of the question, then our precedents have become for us a Frankenstein, overpowering our reason and defeating the purpose for which this court was brought into being.

Of course our previous decisions should have weight with us and should not be disregarded for any light reason. But when the interpretation of a statute regulating procedure is under consideration, we should feel at liberty to examine into the reason of the matter once more. Let us, therefore, determine what interpretation should be placed upon this statute. The word "service" has been variously defined by the courts, and, hence, its meaning must be determined from the context. Since the word "service" does not possess a single, precise, definite meaning, it seems desirable to consider the purpose of the statute in determining what meaning the legislature intended should be assigned to that word in construing this section of our laws. Surely the purpose of the statute is not to single out the county clerk as an adverse party. Since such is not its purpose, we may safely conclude that the reasons which generally exist for delivering to adverse parties copies of the documents and obtaining acknowledgments of service do not here exist. InBaberick v. Magner, 9 Minn. 232, the court found that the purpose of the Minnesota statute, the provisions of which are similar to ours, is: "Such notice is directed to be served upon the clerk of the district court also, not for the mere information of that officer, and to enable him to perform his duty in the premises, but for the more important purpose of supplying the files with some evidence as to the character of the notice given". Possibly another purpose of the statute is to make public the fact that the appeal has been taken by requiring the notice to be filed in the county clerk's office where all may have ready access to it. Two courts, at least, have held that the mere filing of a notice of appeal in the county clerk's office does not constitute compliance with statutes requiring the notice of appeal to be served upon that official: Pierre Savings Bank v. Ellis, 9 S.D. 251 (68 N.W. 545); Valley City Land etc. Co. v. Schone, 2 S.D. 344 (50 N.W. 356); Peck v. Phillips, 4 Dak. 430 (34 N.W. 65); Territory ofMontana v. Hanna, 5 Mont. 246 (5 P. 250); State v. Gibbs,10 Mont. 210 (25 P. 288). It is worthy of note, however, that after the above decisions had been announced, holding that a filing with the clerk did not constitute service upon him, the statutes were repealed. In South Dakota both the statutes requiring service of notice upon the clerk in civil and criminal cases were repealed. After several decisions of the Kansas court had intimated the likelihood of a similar construction of the Kansas statute, the legislature repealed the act. Other courts have held that filing notice of appeal with the court clerk constitutes compliance with statutes requiring service of notice of appeal upon him. From In re Will of Madden: Mackin v. Madden,104 Wis. 61 (80 N.W. 100), we quote:

"A motion was made by the respondent for a dismissal of the appeal because there was no proof on file of service on the clerk of the circuit court of the notice of appeal. A proper notice of appeal was found in the record certified to this court, with the usual filing thereon of the clerk of the lower court. It was urged that the statute requires a service of the appeal notice on the clerk of the circuit court where the judgment appealed from was entered, by delivering to such clerk, and leaving with him, a true copy thereof, and proof thereof, together with the original notice, to be duly certified to this court. * * * Here a notice of appeal duly directed to the clerk of the trial court was delivered to him for the purpose of complying with the appeal statute, and was filed and returned by him to this court as a part of the record. Sec. 3049, Stats. 1898, provides that an appeal must be taken by serving a notice in writing on the adverse party and on the clerk of the circuit court in which the judgment or order appealed from is entered; and sec. 3050 provides that the clerk shall in all cases transmit to the supreme court the notice of appeal. * * * It would require an exceedingly strict construction of the statute to reach the conclusion that there must be a notice of appeal served by copy on the attorney for the adverse party and on the clerk of the trial court, and that such notice, with proof of such service, must be filed with such clerk and by him certified to this court in order to confer jurisdiction upon it. The delivery to the proper clerk of a notice of appeal for the purpose of complying with the appeal statute, constitutes a literal compliance therewith, and the clerk's filing thereon sufficiently proves the service. The return of the notice served and filed complies, literally, with the statute requiring the notice of appeal to be so returned. The motion to dismiss the appeal is denied."

See to the same effect Zahorka v. Geith, 129 Wis. 498 (109 N.W. 552). From State v. Klitzke, 46 Minn. 343 (49 N.W. 54), we quote:

"The ground of the motion to dismiss this appeal is that a notice of appeal does not appear to have been served upon the clerk of the district court. It does appear, however, that a notice of appeal addressed to the attorneys for the state and bearing their admission of service was filed with the clerk of the court. Following the decision in Baberick v. Magner, 9 Minn. 217 (232), we hold that to be a sufficient compliance with the statute."

From Ensley v. State, 4 Okla. Cr. 49 (109 P. 250), we quote:

"The word ``service' itself as used with reference to summonses, writs, subpoenaes, and notices and other legal processes, means the reading of the same to the person to be served, or the deliverey to such person of the original or a copy thereof. * * * In the next place, no provision is made in our statute for the issuance or service of citation or summons in error in a criminal case. In our opinion notice of appeal is analogous to such summons in error, and is designed to take the place thereof. It was so held in Pacific Coast Ry. Co. v. Superior Court, 79 Cal. 103 (21 P. 609). And when such purpose of the notice is considered, we think that the conclusion must inevitably follow that the notice must be in writing, must be served, and that proof of service must be properly made. See Hunter v. Ter. (Ariz.) 36 P. 175."

In Orosco v. Gonzales, 19 N.M. 130 (141 P. 617), the court was concerned with a statute which required any one dissatisfied with an award by the state engineer to take an appeal, but required him to serve the notice of appeal upon the engineer. In holding that a mere delivery of the notice of appeal to the engineer was sufficient, the court pointed out:

"The state engineer is supposed to be impartial in all questions which come before him for determination, having no interest whatever in the matter, and hence is not an adverse party upon whom formal service of process would be required, as in civil cases under our statute. The purpose of the notice to the engineer is to advise him that an appeal has been taken so that he can transmit or produce before said board the papers, maps, etc."

In Jarvis v. Chase County, 64 Neb. 74 (89 N.W. 624), the court had under consideration a statute similar to ours. It held:

"Rigid interpretation and judicial refinement were carried too far when the court held that the county clerk could receive, file and keep the notice without being served with it. Delivery was service and the fact of delivery is a necessary inference from the recitals of the transcript."

It will be observed that, since the appellant filed his notice of appeal with the county clerk, he fully complied with the requirements of the statute as construed by the Minnesota, Nebraska, New Mexico and Wisconsin courts. Likewise, since his notice of appeal was in writing, the original was delivered to the county clerk, and, since we have incontestable proof of the service, he has complied in full with the statute as construed by the Oklahoma court. The word "service", as employed in our practice, does not invariably mean the reading of the original instrument to the individual to be affected, delivery to him of a copy and the making of a return of service. For instance, section 31-302, Oregon Code 1930, provides: "Service of a paper upon the sheriff may be made by delivering it to a person belonging to and in the office during office hours". The statute makes no suggestion that when service is made upon the sheriff a copy should be delivered and that an acknowledgment of service should be obtained. In the present instance, a demand that a copy be delivered to the county clerk and an acknowledgment of service obtained upon the original would invoke a useless ceremony because, as we have seen, the instrument itself was left with him. Likewise, to insist that the prospective appellant, if he obtains no acknowledgment of service upon the original, must in some other form make proof of service would require a vain act because the original instrument is filed in the county clerk's office where its very presence proves everything that proof of service could establish. Since the county clerk possesses the original instrument he needs no copy, and since he includes a certified copy of the notice of appeal in the transcript he himself proves that the notice of appeal was served upon him. It is reasonable to demand that the appellant obtain an acknowledgment of service from the district attorney or supply proof in some other manner because the original is not filed with him and proof of service is an item which the appellant must establish in order to sustain his appeal. Having in mind the purpose of the statute and its phraseology it would seem as though full effect would be yielded to it by a holding that the prospective appellant's delivery of the notice of appeal to the county clerk constitutes service upon that official.

But even if we are mistaken in the views just announced, we, nevertheless, believe that in the present instance there has been substantial compliance with the statute. The law favors the right of appeal, and a substantial compliance with requirements governing the right is all that is necessary: Smith v. Duff,39 Mont. 374 (102 P. 981, 133 Am. St. Rep. 582); Nashville SyrupCo. v. Coca Cola Co., 215 Fed. 527, Ann. Cas. 1915B, 358;Douthwright v. Champlin, 91 Conn. 524 (100 A. 97, Ann. Cas. 1917E, p. 512). Section 13-1221, Oregon Code, provides: "If the appeal be irregular in a substantial particular, but not otherwise, the appellate court may, on motion of the respondent and notice to the defendant, order it to be dismissed". Applying this principle to the situation before us, we find that the county clerk has admitted service of the notice of appeal upon himself by including the notice of appeal in the transcript. This admission is the substantial equivalent of proof of service. Moreover, all courts hold that a voluntary appearance cures defective service. In the present instance, whether properly or improperly served, the county clerk, nevertheless, has sent to this court the notice of appeal. Thus, everything that service was intended to accomplish has been accomplished.Wilson v. Wilson, 6 Idaho 597 (57 P. 708). This is an additional reason for holding that the appeal should not be dismissed.

The opinion of the majority refers to the possibility of repeal by legislative action. But to sacrifice the liberty of a citizen to the doctrine of stare decisis is rendering to that doctrine obeisance and withholding it from justice. We are the ones who placed upon the statute its present interpretation, and we are the ones who should remove it. For the above reasons I dissent.

BELT and CAMPBELL, JJ., concur.