Kesler v. Nice

104 P. 2 | Or. | 1909

Mr. Justice Slater

delivered the opinion of the court.

1. The jurisdiction of this court to review the decisions of the circuit court is expressly limited to such as are final decisions. Section 6, Article VII, Constitution of Oregon. Finality, therefore, must be put to the suit by the circuit court before an attempt can properly be made to have the decision therein revised in this court. Shirley v. Birch, 16 Or. 1, 4 (18 Pac. 344) ; Conrad v. Packing Co., 34 Or. 337 (49 Pac. 659: 52 Pac. 1134: 57 Pac. 1021). And it has been settled in this court that in suits for partition the only decree that is by the statute declared to be “effectual forever,” and “binding and conclusive,” and therefore final, is that entered upon confirmation of the report of referees. All. orders or decrees in the regular course of proceedings prior to that time are merely interlocutory. Sterling v. Sterling, 43 Or. 201 (72 Pac. 741). This is the only final decree contemplated by the statute, and the only one from which an appeal will lie. Bybee v. Summers, 4 Or. 354.

2. No objection to the jurisdiction of the court has been suggested by any of the parties, but the want of jurisdiction is patent upon the face of the record; and, the subject-matter of the suit involving the title to realty, it is the duty of the court, at any stage of the proceedings, when the want of jurisdiction appears, to refuse to proceed further, and to dismiss the appeal. Evans v. Christian, 4 Or. 375; McKay v. Freeman, 6 Or. 449, 453; State v. McKinnon, 8 Or. 487, 492. The record should show affirmatively the proper taking of all steps, and the existence of all the facts necessary to confer jurisdiction upon the appellate court. 2 Cyc. 1025.

Since the printed abstract upon which the cause is being submitted by stipulation of the parties, in lieu of the transcript, shows that the decree is interlocutory, and not final, the appeal must be dismissed, and it is so ordered. Dismissed.