Twitchell v. Risley, 107 P. 459

Twitchell v. Risley

107 P. 459 | Or. | 1910

Mr. Justice Slater

delivered the opinion of the court.

1. It has been held by this court that no appeal lies from a judgment or decree rendered by consent of the parties: Rader v. Barr, 22 Or. 495 (29 Pac. 889); Schmidt v. Oregon Gold Mining Co., 28 Or. 9 (40 Pac. 406, 1014: 52 Am. St. Rep. 759). In the latter case it was held that, strictly speaking, such a decree is not given by confession or for want of an answer, yet will *228be governed by Section 548, B. & C. Comp. The purpose of .an appeal is to bring up for review an erroneous action of the trial court; but the trial court performs no judicial act when an order, decree, or judgment is entered by consent. No appeal can be taken by either party from such decision, since the error, if any, is his own, and not the court’s. 2 Pld. & Prac. 99.

2. By the stipulation in the record, the parties to this cause expressly agreed that the judgment from which the appeal is attempted to be prosecuted should be rendered; but defendant attempted to create or save a right to appeal therefrom by inserting in the stipulation a reservation to the effect that he should not be prejudiced thereby to appeal from the ruling of the court, sustaining the demurrer to his further and separate .answer. This right he never possessed. All the errors of law committed by the court during the course of a trial are merged in the judgment, from which the appeal, if any, is taken, and not from interlocutory orders. Defendant cannot appeal from the judgment because of the statute ,and he cannot waive that to which he had no right (Jones v. M. & G. R. R., 64 Ga. 446; McBride v. Hunter, 64 Ga. 655).

3. Parties cannot by agreement confer upon this court jurisdiction of the subject-matter of the cause. When a lack of jurisdiction appears upon the face of the record, it is the duty of the court to refuse to proceed further, and to dismiss the appeal on its own motion: Kesler v. Nice, 54 Or. 585 (104 Pac. 2).

The appeal therefore is dismissed.