141 P. 1014 | Or. | 1914
delivered the opinion of the court.
The appeal in this case was dismissed because the notice was not signed by the district attorney, who is the law officer of the county defendant. The member of the bar who signed that document has presented a petition for rehearing, and complains strenuously because no opinion was filed. We deemed an opinion unnecessary, as we supposed that, the court having acquired no jurisdiction by the abortive attempt to appeal, the district attorney would himself take an appeal relying upon such authorities as Holladay v. Elliott, 7 Or. 483, Schmeer v. Schmeer, 16 Or. 243 (17 Pac. 864), Van Auken v. Dammeier, 27 Or. 150 (40 Pac. 89), Fisher v. Tomlinson, 40 Or. 111 (60 Pac. 390, 66 Pac. 696), if he deemed it advisable to appeal at all.
“The party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney,” etc.
To ascertain the definition of “attorney” as used in this section, we must turn, not to some private contract which the county court possibly may have made with
“There shall be elected by districts comprised of one or more counties, a sufficient number of prosecuting attorneys, who shall be the law officers of the state, and of the counties within their respective districts.
The doctrine of that excerpt is in force at the present day, no change having been provided by law under the terms of the amended Article VII of the state Constitution. The case of Taylor v. Umatilla County, 6 Or. 394, upon which counsel assuming to act for the county in this case strongly relies, was decided under a statute which did not require the notice of appeal to be signed by the appellant or his attorney, and in that respect is distinguishable from the present procedure under Section 550, L. O. L., which affirmatively requires such a paper to be thus subscribed. The dictum in that case has never been followed since, except so far as to hold in State ex rel. v. Hall, 37 Or. 479 (63 Pac. 13), that assistance may be provided for a county officer in the discharge of his duties. The principle that a public officer cannot be ignored in matters involving the discharge of duties imposed upon him by law is discussed in State v. Millis, 61 Or. 245 (119 Pac. 763), and in Gibson v. Kay, 68 Or. 589 (137 Pac. 864). It has never been denied that in proper cases aid may be furnished for public officers. On the other hand, it has never been decided that they could be ignored or superseded in the interest of special counsel. If this were so, by a parity of reasoning, the county court could ignore the sheriff, the assessor, the treasurer, or any other officer of the county, although
For these reasons the petition for rehearing is denied.
Appeal Dismissed. Rehearing Denied.