119 P. 489 | Or. | 1911
Lead Opinion
delivered the opinion of the court.
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).
“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
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.
Dissenting Opinion
delivered the following dissenting opinion:
This is an appeal by contestee from a judgment of the circuit court dismissing an appeal from a decree of the county court of Malheur County.
On June 14, 1911, the county court rendered a decree canceling a will of Mary Elizabeth Hart, at which time the contestee gave due notice of an appeal to the circuit court. An undertaking on appeal was served and filed June 15, 1911. Allowing 30 days from the expiration of the time for excepting to the sufficiency of the sureties under the provision of Section 550, L. O. L., the appellant was required to file the transcript in the circuit court on or before July 21, 1911, under Section 554, L. O. L., as conceded by counsel for both parties. The transcript was indorsed by the county clerk as filed “July 24, 1911.” This was done on August 15, 1911, and the contestant moved to dismiss the appeal for the reason that the same was not filed within the time required by law. Affidavits in resistance and in support of the motion were filed. Those on behalf of contestee are to the effect that on July 13, 1911, the county clerk, pursuant to the request of contestee’s counsel made at the time of filing the undertaking, had prepared and certified to the transcript. About this time two of the attorneys for contestant examined the transcript, requested the clerk to amend the certificate thereto, and file the same that day. They offered to pay the filing fee, which the clerk declined, saying that he wanted the fee for making the transcript, but did not then know the exact amount. He said that he would inform them later, and that Martin V. Prather could pay the same. There is some contention as to when this occurred; but it appears to have been some time previous to July 21, 1911. R. G. Wheeler and George E. Davis, attorneys for contestee, fixed the date as “July 14, 1911,” and Frank L. Morfitt,
Section 547, L. O. L., provides that a pleading or paper shall be filed by delivering the same to the clerk at his office, who shall indorse upon it the date, and subscribe his name thereto. A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. Bouvier’s Law Dict.; 19 Cyc. 530. In referring to the above provision of Section 547, L. O. L., Mr. Justice Bean in Conant’s Estate, 43 Or. 530, 534, (73 Pac. 1018, 1020), remarks:
“It will be observed that this statute does not make the indorsement by the clerk a prerequisite to the filing, or provide that no paper shall be deemed filed without such indorsement. The filing consists in delivering the paper to the clerk with an intention that it shall be filed. The law imposes the duty upon the clerk of making the proper indorsement thereon, but his failure to do so cannot affect the validity of the filing. A paper or document is filed within the meaning of this statute when it is delivered to and received by the clerk to be kept among the files of his office, subject to the inspection of the parties.”
In the case at bar, the affidavits for the motion to dismiss show that on July 21, 1911, the attorneys asked for the transcript, received the same, and examined it. It is urged that it was in a drawer in the clerk’s office, but this suggestion is without force, as it is doubtful if in many of the counties there are sufficient number of appeals to the circuit court to require a certain place for the transcript on appeal to be regularly kept. The affidavits appear to have been prepared upon the theory that the time for filing expired on July 15, 1911, and show that not only was the transcript prepared, but
It is also, now' claimed that the fees required by law for filing the transcript were not paid within the proper time. This, however, was not the basis of the motion to dismiss the appeal, nor was it referred to therein. It is clearly shown by the uncontradicted affidavits that it was not the fault of appellant that the filing fee was not paid, that the clerk desired time to ascertain the number of folios of the transcript, in order to determine the amount to be paid, and when the appellant and his counsel offered to pay the fees, at the suggestion of the clerk, the matter was delayed. The clerk had a perfect right, and it was his duty, to exact and receive the fees for the transcript before filing the same. Such officer of the court, like any other, has the privilege of taking a sufficient time to make a proper investigation and ascertain the correct amount; and the action according to the deposition of the county clerk did not transgress the rule in Hilts v. Hilts, 43 Or. 162 (72 Pac. 697), but was in perfect accord therewith. In the last-mentioned case it was held that a filing may depend upon the terms of a statute authorizing it, and will not become operative until the requisites are first complied with, at least in substance. In the above case no fees were paid or tendered, and for that reason the clerk did not file the transcript within the required time, while in the case at bar both appellant and his attorneys offered to pay the fees before the time expired, and the only reason this
Counsel for contestant cite the case of Pinders v. Yager, 29 Iowa 468, wherein an appeal was taken by defendant from a judgment in a justice court, and the transcript was
I know nothing about the merits of this case, "but think the appeal should be heard. For these reasons, I am unable to concur in the opinion of the majority of my ássociates.