964 P.2d 1050 | Or. Ct. App. | 1998
Dissenting Opinion
dissenting.
We dismissed husband’s appeal in this case under ORS 19.245, which bars appeals from judgments entered “by confession or for want of an answer.” Gibbons and Gibbons, 153 Or App 377, 956 P2d 1069 (1998). Because I now believe that ORS 19.245 does not bar an appeal that challenges the propriety of entering a judgment for want of an answer, which is the challenge that husband makes here, I respectfully dissent from the denial of husband’s motion for reconsideration. My reading of ORS 19.245 and of earlier decisions involving similar appeals convinces me that the prohibition in ORS 19.245 is designed only to prevent a party from coming forward after a judgment has been entered for want of an answer to complain about the contents of the judgment.
We have in the past exercised jurisdiction over appeals in which the validity of a judgment entered for want of an answer has been challenged, see McCumber and McCumber, 72 Or App 529, 695 P2d 992 (1985); Denkers v. Durham Leasing Co., 72 Or App 180, 694 P2d 996, affd 299
Finally, I find this case to be not unlike those cases in which a party has appealed from a stipulated judgment on the ground that the stipulation was invalid for reasons extraneous to its contents. Generally, a stipulated judgment is not appealable. See, e.g., Russell v. Sheahan, 324 Or 445,451-54, 927 P2d 591 (1996) (tracing history of Oregon decisions denying appeals of stipulated judgments or consent decrees). The Supreme Court has considered appeals from such judgments, however, where the appeal has attacked the validity of the stipulation itself and not the contents of the judgment. See Schoren v. Schoren, 110 Or 272, 292-93, 222 P 1096 (1924) (court allowed appeal for limited purpose of determining whether husband had consented to stipulated judgment).
I respectfully dissent.
Even that limitation on jurisdiction is subject to an exception. Under Dennison v. Doreen, 281 Or 89, 95-96, 573 P2d 1242 (1978), a defendant can appeal from a judgment entered for want of an answer to challenge the judgment on the ground that the relief awarded on it varies from that sought in the plaintiffs complaint. Notwithstanding that exception, ORS 19.245 generally is intended to preclude a defaulted defendant from obtaining appellate review of the contents of a judgment entered as a result of the default.
Of course, normal preservation principles apply to such a challenge. Hence, a party may be required to object to the entry of the judgment in order to challenge its entry on appeal. Husband did that in his ORCP 69 C motion to set aside the default order.
Lead Opinion
Appellant moves for reconsideration of our decision dismissing the appeal. Gibbons and Gibbons, 153 Or App 377, 956 P2d 1069 (1998). Appellant contends that our decision is incorrect. He advances no arguments in support of that contention that were not already raised in his memorandum in opposition to the motion to dismiss and addressed in our opinion. See ORAP 6.25(1)(v) (“Claims addressing legal issues already argued by the parties’ briefs and addressed by the Court of Appeals are disfavored.”).
Motion for reconsideration denied.