*1 Arguеd November reversed March In the Matter of Kathleen Elaine Eugene Logsdon Matter of Howard In LOGSDON et ux STATE OF OREGON
DELL et al 2d 111 380P. argued cause for Huston, Corvallis,
Karl T. Thomas appellants. & Huston, the briefs Corvallis. Johnson, Newport, Attorney, *2 District McMullen,
A. R. Newport, argued cause and Eugene the Richardson, K. respondents. a brief for submitted and Justice, Before Chief Rossman, McAllister, and Justices. Denecke, Goodwin Perry, j. McAllister, c. the two over of children, is a contest
This par- his whose Kathleen, and sister, Howard airplane pa- in an crash. The killed ents were both from a decree the cir- ternal county awarding custody to a for Lincoln сuit court maternal aunt. Newport county, Logsdons in Lincoln at resided
The parents killed on 1961. The 25, and June both years boy, and his old, sister, was then seven Howard, years paternal grandparents, The old. Kathleen, six Logsdon, came Iowa, who resided Elza and Florence immediately Newport death of their after the son daughter-in-law. record that on discloses physical custody grandparents had the 29, June Mosier in at the home of one Harold of the children Newport. Dorothy Majors, C. Director
On June county Department for Lincoln filed of the Juvenile county petition alleging сourt of that in Logsdon was— that Howard * “* * within child parents having of both reason Court Juvenile £8 met accidental death and reason of the child
having guidance need of the care, necessary physical, for his mental or emotional well-being; Logsdon, and that Waneta Ellen mother Jerry Logs- child said is deceased Eldon father of don, and Mrs. said deceased, child is and that Mr. Elvy Logsdon, grandpаrents of said child, physical custody said child, home of Highway, Newport, N. Harold 1920 Coast Mosier, Oregon.” Logsdon. filed
A like as to Kathleen day county judge, pursuant same On the to OES placing (3) entered orders the children in and caused court, given to be to the interested relatives of a hear- notice day. following ing to held the following day, June July hearing and on entered an court held making plаc- both children wards of the court, *3 custody ing them in of a maternal the aunt, continuing and her Coxen, husband, Mrs. Chester hearing of the matter until of the further order the court. hearing given a held of further on
Notiсe was August that but the record indicates the hear- 15,1961, August ing an held. was not On continuing hearing until further order the of entered This order seems to have been the the court. last action by taken Septembеr 1961 the a filed no-
On of court the circuit tice county, appealing Lincoln from— court for Miller, “* [*] Judge [*] that of said certain oral order made juvenile court, on August by Mike continuing of said Kathleen Elaine Logsdon in Mr. and Mrs. Chester Coxen of Eoute 1, Oregon, Box 251, Toledo, and from the written Judge ju- order made said Mike Miller, August continuing venile on court, hearing ing.” proceed- on the filed in the above Logs- A like notice was filed in the Howard don case. January 29, 1962 the came matters on for hear-
ing county. in the circuit court for Lincoln At that parties stipulated concerning jurisdiction time the of the court as follows: stipulated “ME. agreed HUSTON: any objections as to the manner of will
be waived and that we will admit the Oregon of the Circuit Court of the State of for County sitting juvenile Lincoln, as court, to hear and determine the matter of the Eugene of Kathleen Elaine and Howard Logsdon, may put and that Mr. Eiehardson on evi- representative dence and cross examine as a intervening Dells and the Coxens herein. Does that do it? just question, I “ME. one McMULLEN: you sitting Huston,
Mr. said ‘The Circuit Court as sitting appellant it’s as an court’; court, appeal. tried de novo reason it’s objections. Sitting I have no “ME. HUSTON: appellant also court, as anyway. de novo tried because it’s If this means that “ME. EICHAEDSON: taking sitting time is at this Court thought which I is what place court; you said— correct. That’s
“ME. HUSTON: *4 stipulate on Then I so EICHAEDSON: “ME. and Theresa Dell DellM. Eobert behalf Coxen. and Chester Juanita 70 sitting in the “ME. That’s correct, HUSTON: juvenile
place court. of the by stipulated So State.” “ME. McMULLEN: stipulated cases should be that the two further It was trial. for consolidated February entered a circuit court 1962 awarding Theresa E. both children to
decree and Eobert M. children, of the aunt maternal Dell, that decree From her husband. Dell, appeal.
Eeluctantly
conclusion that
reached the
grounds.
procedural
At
reversed on
this case must be
appeal
clearly appears
from the
the outset it
from a non
court wаs taken
the circuit
court to
juvenile
Appeals
court to
appealable
from the
order.
(1), ‹
authorized
OES
circuit court are
appeal
order of the
“a final
from
an
which аllows
419.561 ›
juvenile
of OES
Before the enactment
court.”
any permanent or
appeal
“from
be taken
an
could
circuit
to the
court
comparison
Oregon
A
Laws 1957.
414
court.” Ch
legislative in
а clear
demonstrates
the two statutes
permit
appeal
from a
cases
an
in these
tent
right
final order
imposed by
any
subject
statutory
limitations
right.
conferring
McEwen,
McEwen v.
the statute
(1955); Inland Nаv. Co.
402
203 Or
(1954);
274 P2d
Chambers,
339, 350,
Com.,
Acc.
Or
Industrial
v. State
Chebot
versely a final order affected taken to court shall be a circuit An therefrom. taken court shall be from a Court, Supreme court.” circuit › Oregon 1959. Laws 43 ch §
71 The notice of the county court in this case first refers to an oral order made by the court the custody of Kathleen in continuing Mr. Mrs. Chester Coxen. This obviously was not an appealable order, not because it was but oral, also because, the notice of according to it appeal, purportеd to continue the temporary custody children as pre ordered on viously July 1961.
The notice of next refers to an order en- tered on August 21,1961 continuing hearing. That had no order, course, semblance of finality and was not certainly So far appealable. as we can ascertain from the record no final order was ever entered by the county court. is not necessary to decide whether an appeal
could have been taken from the order of July 3, 1961 declaring the children wards of the juvenile court, since the notice of was filed more “than 30 days aftеr the entry of the court’s order.” ORS 419.561
The parties apparently entertained doubts con cerning circuit court and at the lack tempted circumvent of jurisdiction stipulation. Jurisdiction of the subjеct matter cannot Fox v. be conferred by Lasley, 212 stipulation. Or 80, Parmele v. P2d Mathews, 933 (1957); (March 20, 1963). In addition lack of jurisdiction because the cause was not allowed to in proceed to a final find we also lack of order, jurisdiction for a more basic reason. over the Passing sufficiency the peti- tion filed in the county court, find no evidence whatever establish that tending Logsdon сhil- children within the dren were of the ju- provided venile court ORS 419.476 (1). case it is clear that
From the evidence this court these when the was filed in physical custody of their in the actual children were receiving of care. In and were the best being children had numerous stead of abandoned these apparently provide all them “with anxious relatives, guidance necessary” for their care, “physical, well-being.” It not mental or emotional question adequately of whether would be the children *6 provided question but a of who should have for, privilege. The circumstances that record discloses no justifying the intervention of the court. In Sneed, Sneed v. Or 368 P2d said: 13, 16, 334, “* * * in which as amended statute, 1959, provides means which the jurisdiction can 419.476 obtain ORS reads: ' “ original juvenile court has exclusive ‘The аny involving person a who in case years age and:
is under 18 “ ‘(a) a an act which is has committed Who by an adult would which if done violation, or ordinance of law or violation, constitute city; or оr or a state, the United States “ par- beyond ‘(b) of his the control is Who custody; having person or his or other ents such condition is “‘(c) or behavior Whose welfare endanger or the own welfarе his toas or others; person hav- parents other “‘(d) or WTiose to failed him, abandoned ing his support re- or education provide him with cruelty de- subjected or him law, quired provide the carе, him with failed pravity or guidance and necessary phys- for his well-being; or emotional or mental ical, “ away home.’ from his run ‘(e) hasWho “This Black, court held Belmont v. again 367, 346 P2d Cutts, Or Cutts v. supra, [229 179] Or the court pursuant сhild, assume of a cannot person having unless the
the above physical statute, though even child, neglected stranger has the child. child, allegation proof nor neither we find In this case neglect facts to authorize either or other these children circuit court to declare court or the juvenile court. wards of the necessary, legal this would seem to action was
If guard- аppointment appropriate for the of a ease seq. et ian. OPS of the circuit court is reversed.
The decree Costs in this shall not he allowed concurring. specially
DENECKE, J., might appear to that of Parmele case similar This joined in which I Mathews, 379 P2d dissenting opinion. I here concur However, in the majority in the belief that this case is not with the *7 pleadings Parmele v. Mathews. Under the similаr to here involved the circuit court could not and issues probate appoint guardian act court to or as corpus equity to award in a habeas pleadings creating proceeding. no There were appointment guard- in the of a involved either issues awarding corpus in a habeas ian or only operable pleading peti- proceeding. The was the County alleging Juvenile Officer that the tion within the children asking inquire court to
court and into matter.