Lewis v. Chamberlain

121 P. 430 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

1. Section 7203, L. O. L., which is a part of Chapter 3, Title 48, L. O. L., reads as follows:

“The order or decree so made and entered shall, except as herein otherwise provided, be forever binding and conclusive upon all persons. * * An appeal may be allowed to the Supreme Court, if prayed at the time of entering the order or decree, and upon like terms as in other suits in equity. A writ of error may be sued out of the Supreme Court within two years after the entry of the order or decree, and not afterward.”

We are of the opinion that the act,, providing for the registration of titles and comprising Chapter 3 of Title 48, L. O. L., is intended to be complete in itself and to provide not only a complete procedure for the registration of titles, but a complete remedy for persons who feel themselves aggrieved by any order or decree of the court in relation thereto; and that no appeal will lie from such order or decree unless prayed for at the time the same was entered. Such a decree, if rendered without notice to counsel, would probably be subject to being set aside in the court where rendered as being irregular and therefore voidable; but the application for that purpose should be first made there, and we cannot try out in this court in the first instance the questions raised by the affidavit. The language of the statute that “the order or decree so made and entered shall, except as herein otherwise provided, be forever binding and conclusive upon all persons,” is clear and needs no construction. The instances “otherwise provided” are where an appeal is prayed for at the time of entering the judgment, or where a writ of error is sued out within two years. We see no difference in principle between this case and that of Odell v. Gotfrey, 13 Or. 466 (11 Pac. 190), where it was held that the act providing for procedure in justices’ courts was complete in itself on the subject of appeal.

2. The act in question seems somewhat crude and impracticable in many of its provisions, but plaintiff invoked it and is not here questioning its validity. It does not seem to be in general use as a means of perpetuating titles, being more often resorted to as a substitute for a suit to quiet title than for any other purpose. An appeal is not a constitutional right, but a statutory privilege, and must be taken in the method provided by statute. State v. Security Savings Co., 28 Or. 410 (43 Pac. 162) ; School District v. Irwin, 34 Or. 431 (56 Pac. 413) ; Sears v. Dunbar, 50 Or. 36 (91 Pac. 145) ; Odell v. Gotfrey, 13 Or. 466 (11 Pac. 190).

The motion to dismiss is allowed. Appeal Dismissed.