McCarger v. Moore

BURNETT, J. — The undertaking given by the New Amsterdam Casualty Company provided, “that if said judgment or any part thereof be affirmed, the appellant [599] will satisfy the same so far as affirmed,” having been given for a stay of proceedings as provided in Section 551, L. O. L. 1, 2. The judicial system of the state has not been changed otherwise than as provided in the amended form of Article YII of the State Constitution adopted by the initiative process at the general election of November, 1910, and Section 6 of the article as it formerly read remains in force, by which it is declared that: “The Supreme Court shall have jurisdiction only to revise the final decisions of the Circuit Court.” The only exception to this rule promulgated by the amendment referred to is that the court may in its own discretion take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings: Article VII, § 2. This court, therefore, is one of limited jurisdiction aside from the instances just mentioned. It cannot acquire authority to act except in the manner provided by statute, in a case of the kind before us, and can exercise only power expressly conferred upon it by statute. Except in the stated instances of our original jurisdiction, authority of this court to hear and determine a case is derived from perfection of an appeal. That result is accomplished either by giving oral notice at the time of the rendition of the judgment appealed from or by causing a notice to be served upon the adverse party, filing the original with proof of service indorsed thereon with the clerk of the court in which the judgment appealed from is entered, and by serving or filing an undertaking, all as provided by Section 550, L. O. L., as amended by Chapter 319 of the Laws of 1913, which section requires that the appeal shall be taken and perfected in the manner therein prescribed and not otherwise. There are provisions in Section 554, as amended by Chapter 320, Laws of [600] 1913, about filing a transcript or an abstract within thirty days after the perfection of the appeal, and it is therein declared that: “After compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise.” An abandonment of an appeal is defined in that section, substantially, as a failure to file a transcript within the thirty days mentioned, unless such time shall have been enlarged, and the last subdivision of the section reads thus: “If the appeal be abandoned as provided in subdivision 2 of this section, thereupon the judgment or the decree, so far as it is for the recovery of money, may, by the appellate court, be enforced against the sureties in the undertaking for a stay of proceedings, as if they were parties to such judgment or decree.” This, however, must be read in connection with the other provisions of the statute about serving notice of appeal in the manner and time required by the law, which it has’always been held is essential to the jurisdiction of this court: Baskin v. Marion County, 70 Or. 363 (141 Pac. 1014). At the argument, counsel cited Simpson v. Prather, 5 Or. 87; Peck v. Curlee Clothing Co. (Okl.), 162 Pac. 735; Dunterman v. Storey, 40 Neb. 447 (58 N. W. 949); Flannagan v. Cleveland, 44 Neb. 58 (62 N. W. 297), and Morgan v. Soisson, 21 Pa. Super. Ct. 141; all of which,however, are cases where an original action had been brought upon the undertaking in a court of general jurisdiction. Without intimating what the rule would be in this state in an action on the undertaking here involved, we hold that whatever the liability on the instrument it cannot be enforced in any court, much less in a court having only the limited authority to [601] hear and determine appeals, unless the court has jurisdiction of the cause and the subject matter. But inasmuch as the notice of appeal was not served in time, this court did not obtain jurisdiction, either of the respondent or of the appellants’ surety. All that could be done and all that was done in fact was for the court to decline to hear the case, and purge its records of the matter by dismissing the appeal. The costs in this court followed as an incident of the motion to dismiss, but lawfully we could go no further. The result was to leave the judgment of the Circuit Court intact, not on account of what we did, but by reason of what we did not, for want of jurisdiction. We could not add to or detract from that judgment on the record before us. 3. Under the statute, this court can render judgment against the surety for the'principal sum of the judgment appealed from only when it is in a position positively to affirm such a judgment of the lower court upon a full hearing in this court. The rendition of the judgment against the surety on appeal for the full amount of the judgment of the Circuit Court must be set down as a clerical misprision which we are authorized to correct. The motion to recall the mandate, therefore, must be allowed, and the judgment corrected so as merely to dismiss the appeal, allowing against the Illinois Surety Company and the New Amsterdam Casualty Company only the costs and disbursements on the motion to dismiss, which are not in this instance resisted. No further costs will be allowed to either party. Motion to Becall Mandate Allowed. McBride, C. J., and Bean and Benson, JJ., concur.