*1 Argued February 9, April and submitted affirmed al,
GIBSON et review, Petitioners on v.
BENJ. FRANKLIN FEDERAL SAVINGS ASSOCIATION,
AND LOAN Respondent on review.
(CA A23761, 28829) SC
Edward the cause for him on the respondent response review. With Wheelock, Niehaus, Hanna, Green & petition Murphy, Osaka, Portland. Lent, Justice, Peterson, Campbell,
Before Chief Roberts, Carson, Jones, Justices.
PETERSON, J.
Jones, J., concurring opinion.
Lent, J.,C. dissenting opinion.
PETERSON, J. A. requires every to “be in plainly in a writing labeled as and set forth appeal document.” The document which this FACT, is taken was entitled “FINDINGS OF CONCLU- find- SIONS OF LAW AND It contained JUDGMENT.” ings of fact and of law and concluded: conclusions ORDER
“JUDGMENT Judgment hereby “1. entered favor of defendant plaintiffs’ against plaintiffs all Counts all for Relief. Claims recover its “2. Defendant costs disburse- $__ herein at
ments incurred taxed Portland, day January, Oregon 12th “DATED at 1982. BEATTY, C. JR. JOHN
/s/ Judge Circuit Prepared filed Beatty, Judge C.
Circuit John Jr.
Department 5.” *3 19.026(1) appeal of to be requires
ORS a notice days entry of the judgment filed “within 30 after the appeal their notice of plaintiffs from.” The filed appealed Their after entered.1 days “judgment” more than 30 the was “for Appeals of thereafter moved the Court attorney apрeal of states: The notice judgment hereby give appeal Plaintiffs-Appellants of from the notice “1. by County Judge John C. in Circuit Court in this case Multnomah entered 15, January Beatty, 1982. Jr. <<* * * * [*] showing Judgment appealed copy of from a certified the “4. Attached is entry in the trial court.
the date of (<‡ 5> sfc entitled, FACT, copy CONCLU- “FINDINGS OF
A certified appeal. appеnded the notice of JUDGMENT” was LAW AND SIONS OF mail, that, filing appellant mail must requires is 19.028 ORS filing filing, appeal registered when mail. The date of or certified notice of 19.028, plaintiffs mailing. notice of pursuant mailed the to ORS date mail, mail, by registered thus the appeal or certified class rather than first day at Court of appeal it wаs received filed on the was considered notice Appeals, not when it was mailed. appeal dismissing prematurely an order no as filed because pursuant 19.010(1) judgment appealable yet to ORS has accompanying been entered.” In their memorandum plaintiffs purported judgment motion the that “the stated January appealable 15, 1982, entered on is not an final judgment mandatory comply because it does not with the 70 A. ORCP be set forth in a document.” plaintiffs’
The defendant also moved to dismiss the
appeal, asserting
appeal
that the
was
filed in time. ORS
19.033(2).
Appeals granted
The Court of
the defendant’s
Although
opinion, implicit
motion to dismiss.
its
it wrote no
entered,
order is the
conclusion
a
was
appealable,
appeal
that the
timely
that the
was not
appeal
therefore
should be dismissed.
The resolution of this
turns
case
on whether the
document entitled
FACT,
“FINDINGS OF
CONCLU-
“judgment”
SIONS OF LAW AND JUDGMENT” was a
meaning
within the
of ORS 19.010 and
70. This
steadfastly applied
right
court has
the rule that
appeal
purely statutory.
Unless the order
which an
appeal
is taken is a final order or
within the
meaning
appropriate
appellate
statute,
court has
jurisdiction
Security Savings
no
Co.,
the case. State v.
(1896).
Or
decree be reviewed on There is no chapter definition of defines in ORS 19. ORCP 67 A. as follows: “ ‘Judgment’ as used these is the rules final determin- * * action; rights an ation of the requirements judg-
ORCP 70 A. concerns provides: ment. It
“Every judgment writing plainly be in labeled and set forth in a A document. default *4 stipulated may judgment appended subjoined have or affidavits, certificates, motions, stipulations, thereto such may necessary proрer support and exhibits as or entry particular required, thereof. No form of words is specify clearly party shall against given whose favor it is and whom it is the action. granted or other determination and the relief judge render- signed by the court or or, judgment entered case of in the ing such B.(l), by clerk.” pursuant to Rule 69 requirements all the case meets The final document this is not on section “judgment” its except of ORCP 70 A. “judgment.”2 entitled independently entry judgments B. concerns ORCP 70 part: in relevant provides “(1) filed and shall be entered judgments shall be All shall, the date on clerk. The clerk entry entered, the date of mail a notice of record, any, party of each who is attorneys to the party not in appear. If a who is failure to in default for attorney of appear not have an does for failure default record, party. clerk be mailed to such notice shall in the docket a note also shall make entry judgments, except a of аll
mailing. In the B.(l), subject to the the clerk shall be Rule 69 default under Entry judgment shall not be of the court. direction disbursements, attorney costs, delayed for taxation of Rule 68. fees under rule or
“(2) other Notwithstanding ORS 3.070 rules, statute, judgment is effective purposes these provided in this rule. only when entered «3: ****>> (Council) Procedures on Court
The Council “gov- rules promulgating resрonsibility for charged .with * ** civil in all procedure pleading, practice erning * * *” which, after the state in all courts of proceedings effect unless into legislature, go submission 1.735. ORCP them. ORS repeals amends or legislature 1980, 13, December the Council on promulgated A. was 1981, Laws ch 1982. Or January effective and became 1.§ thеir after patterned B. are 70 A. and 70 however, are, signifi- 58. There counterpart, FRCP federal below to contrast are set forth The rules cant differences. the differences. on a argues is “set The defendant assume, deciding, it is not. without We
document.”
707 FRCP 58 ORCP 70 “* * * Every judgment A.: shall 70 "Every judgment shall separate be in set forth be on a judgment writing plainly document. A labeled as only judgment when so set and in a set effective forth * * * and when entered as document. No 79(a). provided in Rule particular form words is Entry judgment required, shall specify clearly delayed shall taxing not be for Attorneys shall party not in whose of costs. judgment against given submit it is and forms of favor except upon given direction whom it is court, and these directions granted relief or other given not shall be determination the action. matter (Emphasis course.” judgment signed shall be added.) judge the court or render- ** ing judgment such B.(l): judgments “All shall
filed and shall be entered * * *” by the clerk. B.(2): “Notwithstanding ORS 3.070 statute, other rule or rules, purposes of these judgment only is effective provided when entered as rule.” 70 C.: “Attorneys shall submit ** * * * judgment judgment FRCP 58 states that a only is effective (1) (2) it is set forth on a separate document, and 79(a). B.(2) entered as provided Rule ORCP 70 makes only upon effectiveness conditional entry —“a only provided effective when entered as in this rule.” The is not an express condition to effectiveness. difference, a further practical involving
There is attorneys’ participation in preparation judgment, aware, a difference of which the and which council (later promulgation resulted in the of ORCP 70 amended C. Or ch legislature particular, in a minor Laws 9). 58 concludеs with this sentence: FRCP § except “Attorneys shall submit forms of court, upon directions shall not direction of the these as a matter of course.” provides: C. contrast, ORCP 70 By at proposed forms “Attorneys submit shall judgment. so rendering When the court the direction of court, proposed form ordered days prior submission be served five proposed form of Rule 9 B. with accordance shall be filed in accordance with proof made of service *6 Rule 9 C.” 70, October C., this Comment to Rule
Concerning ORCP Pro- 1979, Rules of Civil 15, Proposed Oregon Draft of cedure, pertinent: page following: Rule 58 states the
“Federal “ except ‘Attorneys forms of shall not submit court, shall not upon the and these directions direction of a matter of course.’ preparation judg- discouraging of argument “The for the parties ments the is:
“(a) delay, avoid To
“(b) prepare emphasize responsibility the to To prevail- with judgment rests the court and not the ing with party. C., however, is more approach
“The used in section 70 praсtice in It is on an Oregon. based in line with actual saving of assumption a substantial value and that there is having and that participation court time position make the determin- is in the best judge the trial process they be involved or not should ation whether judgment.” preparing the courts, are often judgments preparеd In the federal (unless orders) clerk the judge entered otherwise attorneys. participation without explains purpose The Committee Note of Rule 58: arisen, chiefly difficulty “Hitherto some has where the opinion containing court has written an or memorandum apparently dispositive words, some directive or e.g., ‘the plaintiffs summary motion judgment] granted,’ see [for Co., United States v. F. & M. Brewing 356 US Schaefer 227, 229, (1958). 78 S 2 L Ct Ed 2d 72 Clerks on opinions occasion have viewed these or memoranda as being in themselves a sufficient basis for entering judgment in the provided by 79(a). However, civil docket as Rule opinion where the or memorandum has not contained all judgment, elements of a judge or where the has later signed judgment, a formal it has become a matter of doubt purported whether entry effective, starting the running post-verdict time motions and for purpose appeal. “The amended rule eliminates these uncertainties requiring that there be а set out on a document —distinct opinion or memorandum— provides which entry (Cita- basis for the judgment.” omitted.) tions
A common practice in Oregon is lawyers for the either prepare or participate in the preparation judgment. This case exemplifies practice. common letter opiniоn of the trial judge herein concluded: “Counsel for defendant may submit findings.” Thereafter, both law- yers submitted proposed forms of findings, conclusions judgment. Finally, on January 12, 1982, the judge prepared and signed the document entitled FACT, “FINDINGS OF CONCLUSIONS OF LAW JUDGMENT,” AND and wrote counsel that he had done so. *7 stated,
As unlike counterpart, its federal effective- ness of an Oregon judgment expressly is not made condi- upon tional the separate requirement document of ORCP 70 A. And unlike FRCP in Oregon prepare clerks do not the judgments; attorneys the (particularly complex cases case) such routinely as this participate preparation the the judgment. These significant рoint differences to the conclusion it separate was not intended the requirement document be jurisdictional.
Beyond question, the drafters to the sought achieve same did the goal certainty as framers of FRCP as to 58— what is a and when the judgment is entered. The substantial differences between ORCP 70 and FRCP 58 and express thе language conclude, of ORCP 70 A. lead us to however, a which the otherwise meets
710 not it is requirements of ORCP 70A. is ineffective because separate not on a set forth document. experienced widespread has not confu-
Oregon the to the promulgate sion which led federal courts requirement. typical. case There has This is any parties’ judg- never been confusion in the minds that attorney ment was entered. Plaintiffs’ was involved in the document, proceedings leading preparation a appended copy appeal a of it to his notice of is [“Attached ** appealed But copy Judgment сertified from *”]. attorney’s timely appeal, for the failure to file the notice question would never have been raised. requirement to consistently We have adhered entered, appeal be and that no will lie that a See, Ragnone v. e.g., Portland School nonappealable order. (1980), 1J, No. P2d 1052 in which District Or appeal granting an from an order this court dismissed no motion for n.o.v. because defendant’s contains this Ragnone had been entered for the defendant. discussion: resulting it lack of an “Of is true that course ‘form,’
appealable judgment under statute is a matter of says, it though not describe as a the dissent we wоuld as law, particularly ‘triumph.’ In matters some areas procedure, thought on balance that it has been desirable rely predictable conse- can on the trial courts and counsel procedures. advantage quences prescribed This would urge frequently to yielded natural weakened courts tо event, although rules In ‘form’ ‘substance.’ sacrifice room for might to leave this procedure be written case, flexibility they now do so. in the individual do not questions docu- may be close whether There judge is a and entered a trial court ment made decree, judgment or decree under is to be deemed a or 19.010(2), a ‘gray not create but that closeness does ORS jurisdiction our whim or the appellate delimited area’ of parties. decide whether the docu- We must desires is, is, deemed, If judgment or decree. is to ment not, jurisdiction.” no jurisdiction; if it there there Or at 343. we contrary arguable, conclusion is Although the docu- promulgаted believe that Council certainty, further in order ment
711 requirement jurisdictional. be with Here, intention comply separate the failure with document only.3 requirement is a matter of form Appeals is The affirmed. Court concurring. J., JONES, case,
I concur with the result reached in this emphasize that 70 A. wish to ORCP should followed in every сase and that should set forth in a separate plainly judgment. document and labeled as a judge signed
As a trial I hundreds documents “Findings with the identical label used in this case of Judgment.” Fact, Conclusions of Law and Members of the expedient trial bench found to be a most method of disposing closing However, of cases and the file. we have a by new rule and should with we all live it and it. This abide open ignore decision should not be an invitation to ORCP contrary, 70 A. On the it command should be a to follow it. dissenting. LENT, J.,C. majority arguendo, assumes, at footnote 2 that separate is not set as a document as by
required Having majority assumed, ORCP 70 A. so comply exсuses the failure with the mandate the rule by comparing analogous Noting it with the federal rule. only that the federal rule makes the effective compliance, provision is there but that that is absent from majority rule, the state finds that our rule should be differently B.(2) construed because ORCP 70 makes effec- “entry” dependent upon by tiveness the clerk court. 3 practical consequences We also are concerned with other should we hold that jurisdictional. document is We know hundreds of “judgments” Oregon have in been entered courts which are in the form of the final plaintiffs’ reasoning, in the case at bar. Under those cases rеmain open, judgment having no been entered. We no means recommend that ignored. document be It should be followed. phrase “judgment order” used in the document at issue this case is a contradiction and should used. A terms not be is the “final rights “any determination of in an action.” An order is other * * * determination nature.” A. A which intermediate ORCP 67 potential may from an distinct order. Needless confusion and arise when the error 603, 606, expression Company, Cenci v. is used. See The Ellison 289 Or 617 P2d (1980). reason of
What that can become effective pursuant been entered the clerk to ORCP 70 having B.(2)? It judgment; judgment? is a and what is a *9 it as a plainly A. answers that is a labеlled “writing a separate and set forth in document.” This rule; not with the command of the writing comply does therefore, entry by clerk make it effective. its a cannot majority unwilling uphold
The to the defendant’s forth that this is set contention document, so, run rightly and for would counter purpose and text of rule. obvious premise is thаt concurring opinion’s implicit not in this case is set as writing document, writer, takes just majority, did constantly ignored the rule and note that the mandate of consequences might have adverse for others to enforce it judges party not to this case. exhortation present to the rule in the future concedes the lаwyers follow part lead writer to com- comply failure to should majority, join with the to it. pany changed. If rule is a one should be Until bad court time it be followed. The failure this should rule case will mean that can enforce the rule enforced, to comply the next time failure never unless us, expediency confess that with the rule is before we rule way our around the this case caused us construe our here was an aberration. result I dissent.