In re Ryan's Estate

| Or. | Apr 17, 1917

Mr. Justice Burnett

delivered the opinion of the court.

Within ten days from service of notice of the appeal the appellant must serve and file his undertaking on appeal with the clerk of the court. Within five days thereafter exceptions to the sufficiency of the sureties must be filed or be considered waived. The appeal is deemed effective from the expiration of the time allowed for exceptions to the sureties or the overruling of such objections: Section 550, L. O. L.

1, 2. We find the following in Section 554, L. O. L.:

“Upon the appeal being perfected, the appellants shall within thirty days thereafter file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and thereafter the appellate court shall have jurisdiction of the cause, but not otherwise. * * ”

It will be noted that the appeal became perfect on August 2, 1911, the date when the exceptions to the sufficiency of the sureties were denied. In order to confer jurisdiction upon the Circuit Court, the transcript should have been filed within thirty days thereafter, as required by Section 554, L. O. L., or at least by September 1 of that year. With the lapse of this thirty days without any extension of time granted before its end passed all opportunity to confer jurisdiction upon the Circuit Court. The order of July 22, 1912, directing that the transcript he filed as of a date in the previous year, was utterly void and of no effect. It was in the nature of an order nunc pro tunc, concerning which Mr. Justice Bean very pithily said in Grover v. Hawthorne, 62 Or. 75 (116 P. 100" court="Or." date_filed="1911-06-06" href="https://app.midpage.ai/document/grover-v-hawthorne-6902578?utm_source=webapp" opinion_id="6902578">116 Pac. 100):

“When a judgment has been actually rendered or an order made by the court which is entitled to be entered of record, but, owing to the misprision of the clerk, has not been so entered, the court may order the entry to be made nunc pro tunc. But it is not the function of the court to create an order now, which ought to have been passed at a former time. In ordering an entry made nunc pro tunc, not one jot or tittle should be added to or taken from the original judgment.”

3. If it was not true that the transcript was filed within thirty days after perfection of the appeal, no order of the court can make it true. The sole purpose of a nwnc pro tunc order is to make the record speak the truth, never to falsify it. Still further, after having dismissed the appeal on July 13, 1914, the term at which it was made having lapsed,, and there being no showing in the matter of mistake, inadvertence, or excusable neglect on the part of the appellant or of his counsel, the court could not rightly make the order of March 31, 1916, reinstating the cause for trial. During the term at which it was rendered a court of record may change its judgment under proper circumstances not disclosed here; but beyond the term, there is no sanction for anything more than to make the record conform to the actual truth of what was done at term time. No court has appellate jurisdiction over its own decrees.

This court has very often held that a failure to file the transcript within the time provided by law or within an enlargement thereof hy an order made before the expiration of the legal period will prevent the jurisdiction of the court from attaching. Citation of the precedents would be platitudinous. The statute is plain and mandatory beyond the need of construction when it says the transcript must be filed within thirty days after the perfection of the appeal “and thereafter the appellate court shall have jurisdiction of the cause, but not otherwise.”

The Circuit Court was utterly without jurisdiction to hear the cause on appeal. Its judgment is therefore void and .must be set aside and held for naught. The cause is remanded with directions to the Circuit Court to dismiss the appeal from the decree of the County Court.

Reversed and Remanded with Directions.