Hart v. Prather

MR. Justice Burnett delivered the opinion of the court. 1. “If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed abandoned and the effect thereof terminated.” Section 554, subd. 2, L. O. L. The “time provided” is determined by the first clause of that section to be “within thirty days” after the appeal is perfected. These requirements are jurisdictional, and failure to comply with them is fatal. Davidson v. Columbia Timber Co., 49 Or. 577 (91 Pac. 441) ; Burchell v. Averill Machinery Co., 55 Or. 113 (105 Pac. 403). 2. Section 1113, L. O. L., in part reads thus: “It shall be the duty of the several clerks of circuit and county courts in this State in counties of not more than 50,000 inhabitants, at the time of the filing of any suit, action or proceeding for the enforcement of private rights, including appeals, * * to exact from the plaintiff or moving party ” certain fees scheduled in that section, “ and no complaint, transcript on appeal, petition, writ of review or any other papers in probate proceedings above mentioned shall be filed until such payment is made.” This language is mandatory, not only upon the county clerk, but also upon the courts and we cannot disregard it. The county clerk, as the official servant of the county in the collection of fees as part of its revenue, has no power to waive any of the provisions of the law prescribing his duty. Not only so, but the appellant and his attorneys knew that the scope of the officer’s duty was thus restricted. Still further, the fees for making the transcript, as well as the one required to be paid before filing the same, being established in plain terms by the statute, the appellant and his attorneys could easly have computed them and tendered the amount to the clerk; but even this was not done or attempted. The whole transaction as disclosed by the [10] affidavits appears to have been an effort on the part of the appellant to do business with the county clerk on a credit basis when the statute expressly requires it to be done for cash in advance. We are not unmindful of the terms of Section 547, L. O. L., providing that “a pleading or paper shall be filed by delivering the same to the clerk at his office who shall indorse upon it the day of the month and the year and subscribe his name thereto.” We have no disposition either to overturn the doctrine of such cases as McDonald v. Crusen, 2 Or. 258; Conant’s Estate, 43 Or. 530 (73 Pac. 1018) ; and Bade v. Hibberd, 50 Or. 501 (93 Pac. 364) when considered in the light of the conditions under which they were decided. They hold, in substance, that a paper is deemed filed when left with the clerk for that purpose, although he may not have placed thereon the required indorsement. But that section and these cases deal with the mere physical act of filing the paper, and not with the right to have it filed. They are applicable to the former system under which the fee was the private perquisite of the officer which he might waive at his pleasure. Now, however, the filing fee is the property of the county the prepayment of which must be exacted by the clerk. Its payment in advance is a condition precedent without the performance of which the right to have the paper filed does not exist. A precedent controlling the case in hand is found in Hilts v. Hilts, 43 Or. 162 (72 Pac. 697). An appellate court can acquire jurisdiction only in the way marked out by the statute. We cannot turn aside from the beaten path thus established, and say that the clerk ought to have disobeyed the law which requires him to exact fees in advance, and forbids him to file the transcript until the filing fee is paid. The action of the circuit court in dismissing the appeal is affirmed. Affirmed.