Carver v. Jackson County
29 P. 77
Or.
1892
Check Treatment
Strahan, C. J.

Upon the argument in this court, counsel for the respondent objected to the consideration of any of the supposed errors in the record because the same were not assigned in the notice of appeal.

Section 537, Hill’s Code, among other things, provides in case the judgment be one rendered in an action at law, the notice of appeal shall specify with reasonable certainty the grounds of error upon which the appellant intends to rely upon the appeal; and section 544 authorizes this court to affirm, reverse or modify the judgment or decree appealed from in the respect mentioned in the notice, and not otherwise.

These provisions of the code, according to the plain import of the language, require that in an action at law the notice of appeal to this court must specify the grounds of error upon which the appellant intends to rely, and such has generally been the interpretation placed upon them by this court. (Dolph v. Nickum, 2 Or. 202; Fulton v. Earhart, 4 Or. 61; Lewis v. Lewis, 4 Or. 209; Williams v. Gallick, 11 Or. 337; Krewson v. Purdom, 13 Or. 563.) But an exception to this rule was stated and recognized in this court for the first time in McKay v. Freeman, 6 Or. 449. In that case the court said: “ Before examining the assignment of error set out in the notice of appeal, it is necessary for us to pass upon the objections made for the first time in this court to the sufficiency of the complaint and to the jurisdiction of the court below over the subject matter of the action. It has been the practice of this court to consider that the court below had not jurisdiction of the subject matter and that the complaint does not state facts sufficient to constitute a cause of action or suit, whether they are assigned as error in the notice of appeal or not.” And this seems to have been followed in State v. McKinnon, 8 Or. 487. The reason of this exception was not stated, but no doubt it is that in a case where the court below was without jurisdiction or where it acted upon a pleading which was utterly destitute *64of legal merit, that is, which entirely failed to state a cause of action or defense, the court was without power to render a judgment that would be of any validity, and therefore rather than encumber its records with nullities in the form of void judgments the court would of its own motion take notice of the objection though'not assigned as error in the notice of appeal.

This case is not within the exception above referred to, and it is difficult to see how we can .examine the supposed errors without disregarding the plain mandate of the statute. Woodruff v. Douglas Co. 17 Or. 314, was found by the court to be within the exception and, properly understood, is in harmony with the other cases on the subject.

These suggestions lead to an affirmance of the judgment, and it is so ordered.