*1 petition February dismissing appeal On for reconsideration filed of order filed January 8, allowed; petition for reconsideration dismissal affirmed December 266) 12,1991 (311 April petition April review allowed reconsideration denied Oregon Reports See later issue BAUGH, Robert H. Westlund, Dorsey N. Nick William P. Patterson, and Jean as Executrix Patterson, Estate Harlan individually, W. - Cross-Respondents, Appellants THIRTY, through DOES ONE Appellants, XV, BRYANT LIMITED through PARTNERSHIPS I Bryant, David L. through Hillshire Trusts I XV through and Does Forty-five, One - Respondents Cross-Appellants, CO., PACIFIC NORTHWEST TRUST Respondent. (86-1-357; A48114) CA P2d *2 Hibbard, Caldwell, Caldwell, John C. & Bowerman Schultz, Oregon City, petition. Force, Gutzler, Salem,

David con- appeared C. and Vick & tra.

JOSEPH, C. J.

Buttler, J., concurring.

Rossman, J., dissenting.

JOSEPH, C. J. Baugh, Westlund,

Plaintiffs Dorsey and Patterson petition for reconsideration of an order dismissing their appeal for failure timely to file a notice of appeal from an amended judgment pursuant to ORS

We determined that the original appeal and cross- appeal in this case defective, were because the judgment from which the appeal was taken did dispose of certain coun terclaims asserted defendants in their plaintiffs’ answer to complaint. 98 Or App Instead of dismissing for lack of a final judgment, gave trial court leave to enter appealable judgment, pursuant 19.033(4).1 We also said: “The abeyance case will be held until the of an

appealable judgment parties and until the thereafter file amended so cross-appeal. notices of they If do not do of an judgment, we will dismiss cross-appeal prosecu- for want of tion.” 98 Or at 426. course,

In due the trial court entered an amended ORCP 67B judgment. Plaintiffs then filed an amended notice *3 appeal, and defendants filed an amended notice of cross- appeal. The notices were filed more than days 30 but within 45 days after entry of the amended judgment. We dismissed the appeal and cross-appeal on the ground that the notices were filed untimely.2 petition Plaintiffs for review of that decision.

In the petition, which we treat petition as a for recon- sideration, 9.15(1), ORAP plaintiffs contend that ORS

1 19.033(4) provides: ORS “Notwithstanding filing appeal, of a notice of the trial comí shall have jurisdiction, appellate court, appealable with leave of the enter to an if court determines that: “(a) filing appeal At the time of the of the notice of the trial court intended appealable judgment; enter an “(b) appeal The from which the is taken is defective in form or was entered at a time when the trial court did not have of the cause under (1) section, yet subsection of this or the trial court had not entered an judgment.” 2 Subject exceptions here, requires not relevant ORS 19.026 that a notice of appeal days entry register be filed within judgment being 30 after in appealed.

19.033(4) of a require filing appeal notice after that, therefore, of a under it and this cannot dismiss an for lack of a appeal party when file a judgment. They fails to amended above) (quoted gave also contend because the order them appeal, in which to file an amended notice of their dismissed, they should not be filed their Last, plaintiffs amended notice within that time. contend that the amended and amended notice of original should relate back to the time of the and notice of

Plaintiffs misconstrue the nature of the exceptions not relevant given Subject here, means that an can be taken ORS 19.010 a final «* * * * * * * * * 19.010(2) (e) ambiguous [is] appellate jurisdiction provisions has no

under this court [its] adjudication judgment’s the trial court made no [if] finality appellate purposes.” Leasing Corp. v. for Industrial Dyke, (Emphasis Van P2d 285 Or supplied.)3 Leasing quoted language Corp. a new The from Industrial did not establish

principle Oregon appellate jurisdiction In P. & P. law. Abrahamson v.Northwestern Co., 339, 342, 346, 15 141 Or P2d 472 the court said: appealable, jurisdic- “If the order the trial court is not this court is without * ** upon determine the cause the merits. will be dismissed.” tion to Earlier, Dunbar, 36, 37, 91 said, regarding in Sears v. P 145 the court an complaint: denying motion to dismiss the from an order a the reason that the filed a motion here to dismiss the “[PJlaintiff appealed lie. from is not a final nor one from which an will order

Dismissed.” Johns, (1915), regarding Similarly, P 87 in Lecher St. demurrer, attempted appeal overruling from an order the court said: seemed, of this cause was never and for that reason “Jurisdiction * * *.” should be dismissed Leasing principle in several contexts since Industrial The court has reiterated the Corp.: 1J, (1980) (in 339, 345, 613 Ragnone v.Portland School Dist. No. *4 n.o.v.): allowing judgment an order an Appeals the Court of to dismiss “We that this matter be remanded to order jurisdiction.” for want of the instant 487, 489, 622 (1981): Irrigation, P2d 729 Miller v. Grants Pass 290 Or plaintiffs attempted parties agreed that all and this court are had “Since non-appealable Appeals no it follows that the Court of had from a 19.033(1) that, provides filed, ORS when a court has of the A “jurisdiction cause.” dilemma arises when a notice judg- is filed from a nonfinal Historically, attempt ment. to judg- from a nonfinal only ment could result in an order of dismissal for want of See, e.g., Martin, jurisdiction. Oregonians Against v. Trapping 210, 3, 72 Or 695 P2d 932 and cases cited in note 19.033(4) ORS supra. enacted avoid the need to dismiss premature appeal in order to the trial court the give power to enter an appealable judgment, authority that the trial court 19.033(1) by lost under ORS the mere fact that a notice of However, had been filed. ORS create in court to decide the merits of an It appeal. authority confers give this court to trial court to enter an appealable If a trial court never enters a judgment pursuant to leave under ORS 19.033(4), this court would have to dismiss the original appeal jurisdiction, for lack of because no final judgment had ever existed from which an appeal could be taken.

In Honeyman 615, v. 90 Or 753 P2d appealed defendants from a judgment dispos- ing plaintiffs’ against claims them. did not dispose plaintiffs’ against defendant, claims another Spassov. We fact, determined the trial court had ruled claims, on all including those against Spassov, and that jurisdiction to decide the case.”

Meyer Joseph, 588, 590, (1983): v. 668 P2d 1228 being appealed] decree, 19.010(1), order is neither a nor “[The * * nor an order described in ORS *. This must be dismissed on appellate jurisdiction.” our own motion want Parcher, (1985): Goeddertz v. 299 Or 701 P2d 781 decree, 19.010(1), “Neither document is a nor the kind of 19.010(2), order described in ORS which is treated as a or decree for the * * * purpose being reviewed on This must be dismissed on our appellate jurisdiction.” own motion for want of Anyone precedent, except Honeyman any who still thinks the dissent basis Clostermann, supra, may v. want to look at: Zell, 434, 90 (1939); Durkheimer Inv. Co. v. Union Oil Co. of Calif. 161 Or P2d 213 Co., 588, Lilly v. Linn-Benton Distrib. (1974); Green v. Enter 270 Or 528 P2d 520 Inc., prises, Lewis, 952, 544 (1975); 631, 547 Moran v. 273 Or P2d 169 274 Or P2d 627 (1976); Employment, 11, (1977); Gregcin, Johnson v. Assured J. 558 P2d 228 City Dayton, Co., 709, 601 Inc. v. (1979); Cenci The Ellison P2d (1980); Mangus Progress Quarries, 622 *5 670 disposition failed to reflect the full of

judgment being appealed gave the trial court leave under ORS Accordingly, the case. 19.033(4) required Our order judgment.” to enter a “corrected after appeal of an amended notice of within filing the time, After a number of extensions of entry judgment. of that 27,1986, as the date that an amended notice of we fixed June the would be due. The trial court entered corrected 29, Spassov The and May on 1986. Clostermanns judgment 1, July of from that on separate judgment filed notices of Spassov’s We determined that 1986. therefore, untimely that, jurisdiction and this court lacked Clostermann, App at 619 n appeal. Honeyman over his v. However, could for- go 4. we also concluded that Clostermanns, original their as to the because ward timely respect part judg- with to the appeal was filed jurisdiction affected them and conferred on this ment court: conclude, first, file notice of

“We that failure to entry days after of the corrected does jurisdiction. jurisdiction obtained deprive of We [this court] timely appealed from the when defendants [Clostermann] judgment. the trial court with leave to first Our remand to 19.033(4) pursuant did not enter a corrected to ORS Deisch, Well-Drilling Murray v. jurisdiction. See affect our (1986) (1985), rev den 300 Or 546 704 P2d 19.033(4)].” the enactment of ORS was decided before [which at 619. has caused us to petition for reconsideration In v. and we now overrule it. Ellis holding, reassess Roberts, Supreme Court was filed after the with a notice of confronted but before it had been signed of the case had been disposing the anomalous situa in the The court noted register. entered filed notice of creates: It prematurely tion that a yet it does jurisdiction proceed, trial to deprives the court to decide the jurisdiction not confer Honeyman case, in the case at bar and appeal.4 In that as appeal deprives pendency recognized a trial 4 “Thiscourt has Nickerson, rulings, substantive Nickerson court of to make 522-23, Appeals long the Court of held one, jurisdic filing present a trial court a notice of divests cases like the — see, Murray Deisch, e.g., Well-Drilling subequently enter a tion under ORS supra, given leave was bar, and unlike in Unlike in the case at judgment. timely in Ellis filed a notice of Honeyman, appellants a critical the new That appeal difference, giving the act of leave under any not have effect on the does pre decide the case did not court if necessity of a dismissal in viously exist; merely it obviates the be the case back to the trial court. Jurisdiction can get order to to ORS respect pursuant to a obtained with 19.033(4) only way in the same it can be obtained with timely of a notice respect any judgment: filing other Leasing Corp. from a final See Industrial judgment.5 *6 Dyke, supra. v. Van enacted, orders leave giving

Since ORS entry for of a have stated a time which an purpose doing amended notice of is to be filed.6 The of jurisdictional that does not reflect a concern. It is a case man Initially, short, as agement period tool. of time allowed was Honeyman reflected in the required filing order of days. period amended notice of That short a parties having resulted in to move for of time to file extensions appeal. Honeyman the amended notice of is also an of example that. The more recent state a 45 practice period has been to of days giving the date the order leave under ORS from of 19.033(4). However, regardless spec of the amount of time ified, failure to file an amended notice of within the prescribed days dismissing number of will result in this court’s 19.033(3); lack prosecution, pursuant for to ORS plaintiffs’ appeal August It follows that 19.010,

was not taken from a or other final but did serve to entering oust the trial court of so that the actual September 5, August subsequent, 28 was ineffectual and the was also was, final, premature. yet appealable judgment There as no in this case.” 302 Or at 9. elementary always “jurisdiction” determine whether it It is that a court has case; elementary “jurisdiction” have to decide a it is also that this court does not judgment, brought “jurisdiction” if the is not to decide the correctness of a apply, recognize, that distinction. to it. The dissent does not or at least does nothing special labeling the an “amended notice of There is about document appeal” appeal” “supplemental appeal.” serve the same notice of would “Notice of only distinguishes Labeling it from the earlier filed notice of function. the document appeal in the same case.

it has no bearing party’s on a need to comply with the stat- utory period for filing notice of under ORS 19.023.

The order in this case parties said that would days have 45 entry the date the amended judgment file amended notices and appeal, cross-notices of rather than days from the date of the order. The phraseology appar- ently led appellants to assume that a notice of would not need to be filed within the 30-day period in ORS 19.023. The order also said that failure to file the notice or cross- notice of appeal within the 45-day period would result in a dismissal for prosecution. lack Even though the order said parties would have days of a new respective (and file their notices even though Honeyman supra, permitted filing of an amended more than 30 after the a judgment 19.033(4)), under ORS this court has no authority to waive a jurisdictional requirement. There- fore, we allow the petition for reconsideration but affirm the order of dismissal.

Petition allowed; reconsideration dismissal affirmed.

BUTTLER, J., concurring.

If we were writing slate, on a clean I would agree entirely disposition with the opinion. However, of the lead not, are and that why is the reason this case is before us.

I believe that ORS was intended to have a *7 very limited purpose: permit this court to obviate the neces- sity of dismissing from a nonfinal judgment by permitting court to grant leave to the trial court to enter an appealable judgment under the circumstances set forth in (a) (b) subsections face, statute. On its that is all that the permits. However, statute it say what hap- pens or what must new, be done after a appealable judgment is by entered clear, the trial however, court. It seems case remains pending court, in this unless and until we dismiss it for want of jurisdiction.

veryA broad reading of the that, statute would be once an appealable judgment has been by the trial court, appellant if the court, files that with this we proceed could to decide the merits of the Certainly, case. interpret we could provide, so specifically could legislature interpreta- have. That we never way, although the statute viable, is not adopts, almost the dissent tion, which judg- nonappealable would be from notice that, a new although would hold apparently ment. The dissent any filed within necessary, it need not be appeal might 669, although the time, App at particular filed within the if it is not prosecution for want be dismissed specified. this court time that in this case we did first have done is what we

What Clostermann, 615, 753 P2d Honeyman and in is, authorized 1384, rev den 306 Or from the new a notice of to file appellant opinion As the lead after it is entered. days than 30 more the notice of also ordered that we have acknowledges, days permit- less than the 30 be filed from the new ted statute. that we had no opinion

I with the lead agree Clostermann, Yet, Honeyman supra, things. to do those be filed within the notice of we had ordered and had new, appealable judgment after the days Ultimately, limit. the notice extended that time later new was days than 30 after the was filed more entered. We held: conclude, first, file a notice of that failure to

“We judgment does not of the corrected jurisdiction when deprive jurisdiction. We obtained us of judgment. Our timely appealed the first defendants remand to the trial court judg enter a corrected with leave to jurisdic did not affect our pursuant to ORS ment Deisch, Murray Well-Drilling v. See tion. (1986).” App at rev den 300 Or 619. reasonably be can not believe that ORS

I do or shorten the time to extend permit this court interpreted that it could be do I think Neither filing a notice new, final judg- when a to mean reasonably interpreted court, proceed we could this entered and filed with ment is that was done Although merits. decide that we necessary but that a new assumed it. It was on that basis filing time for to fix the had discretion *8 proceeded agree that we to decide the case on I the merits. Clostermann wrong was should be overruled.

However, Clostermann is the until it law is overruled. Neither the Supreme legislature Court nor the has done any- it, about and there is no thing why may reason not adhere of disposing it in this case. Appellant reasonably relied on clearly supported by our which Clostermann. appeal, prefer Rather than dismiss this I would to hold that our in this apply prospectively decision case is to only. agree a majority Because the court does not with that dis- position, I the join opinion. in lead JJ., and Riggs, join opinion.

Newman in this J., ROSSMAN, dissenting.

I dissent. This court’s is not it jurisdiction capricious; vests, cannot be lost at the of a drop hat. Once it only it can be by the clear dislodged statutory direction of ORS Moreover, plaintiffs find in present position themselves their they specific relied our instructions to them. Under circumstances, the I am lead opinion disturbed the leaves them the hanging in wind.

According opinion, appellate to the lead an court has a jurisdiction over cause when a is notice filed. However, 19.010, under appeal may an be taken from a final judgment. Citing at 668. Ellis v. Roberts, pre it reasons that a appeal “deprives jurisdic mature notice of the trial court of * * * proceed, yet jurisdiction tion to does not confer on the appellate court to the at appeal.”1 decide 670. It jurisdiction concludes that ORS does not create and, appellate previously court none existed where there fore, plaintiffs’ failure an amended appeal here file within Roberts, supra, Supreme Ellis In the Court was confronted with a notice judgment disposing signed filed after the case had been but before it had comí; register. pre- been The noted anomalous situation a creates, maturely jurisdiction depriving filed notice of the trial court of the proceed However, to enter an whether the premature nonappealable judgment, brings or is from a neither before the court issues See, which can be decided. reviewability The lack of affect infra. cause, jurisdiction court’s even if over the exercise of is a dismissal deprives us of entry of the corrected days jurisdiction. that an opinion’s lead conclusion deprives

nonfinal judgment 668, at n 3. on Court decisions. Supreme is based predate the of ORS However, it relies on enactment the cases 19.033(4) of of that passage not the effect the explain and do court. The lead jurisdiction appellate of the statute the under giving its the “act of leave errs in belief opinion of 19.033(4) any jurisdiction effect on the does not have ORS the case did not court if to decide appellate jurisdiction the at 671. previously exist.”2 filed from a Historically, a notice of when 19.033(4) appeal was dismissed. ORS judgment, nonfinal the appellate avoid dismissal when the court could was enacted to remaining for determine that there were no substantive issues did state determination in the trial court but the not Inn, See, finality. e.g., City Carriage Portland v. of (1983). 19.033(4) 191, ORS did not the change 673 P2d 531 a prior law that a decision on the merits of requirement of case a a it did mecha- depends judgment, provide case on final but court, juris- whereby relinquishing nism the without diction, a receive final so that it could make could a decision. out carry is so that it will

Legislation to be construed and, language if its is unclear from the purpose purpose its meaning a com- section, required give courts are to the as a statutory and scheme with common sense with ports (1966). 460, 465, S.I.A.C., 243 Or 414 P2d Didier v. whole. meaningless. Thompson is not to be deemed legislative A act (1976). Co., IDS Ins. Life meaningless It for the to have legislature would be a to file a new a required party 19.033(4). any That would have not achieved under ORS the case be by dismissing result available followed actually grant aspects: power with a broad several Jurisdiction — types jurisdiction (1) jurisdiction encompasses jurisdic “A court’s three (3) matter, (2) jurisdiction subject jurisdiction parties, tion power particular judgment.” City of Roseburg, Landis render 49, 411 an appealable judgment and a new of That legislature a intended different result is apparent from legislative hearings amendment, on the during which Judiciary counsel the Senate explained Committee 19.033(4) ORS

“[ajllows problems the trial court to cure certain a appealed affecting juris- that has the appellate been without Minutes, Committee, Judiciary Senate June diction[.]” 1985,p. (Emphasis supplied.) 19. There is no need for appel- to create jurisdiction, late it pursuant exists to ORS provides which filed, once notice of has been appellate court has jurisdiction “of the cause.” While the the cause is in appellate court, the trial court’s is limited. It retains jurisdiction over attor- fees, ney disbursements, costs and 19.033(1), may 19.033(5). enter an order under may ORCP 71. ORS It also enter with leave of the pursuant Appellate to ORS over *10 copy appellate cause does not until “a judgment end is * * 19.033(6). short, mailed *.” ORS In its ORS 19.033 in entirety provides that, appeal filed, once the notice of has been the appellate jurisdiction court has and the trial court does Deisch, not. See Murray Well-Drilling 1, 9, v. App Or rev den opinion The lead is in wrong stating that “ORS 19.010 means an appeal only that can taken be from final judgment.” 104 668. If a notice of “has been served and provided 19.023, filed as in ORS 19.026 and 19.029,” even if the is from a nonappealable the over still has the cause. ORS ORS a jurisdictional 19.010 is statute in the sense may that it defines what we review: may

“A be pre- or decree reviewed on as in scribed ORS 19.005 to 19.026 and 19.029 19.200.” (Emphasis supplied.) footnote,

In a opinion the author of the lead recog- nized appealability reviewability the distinction between and Murray Deisch, in Well-Drilling supra, v. 75 Or App at n 4: say an jurisdic-

“To is dismissed ‘for lack appealable tion’ when the defect is a want of an * * * 19.033(1) may usage. be inaccurate and ORS order * * * emphasize ‘jurisdic that what is considered 19.023, 19.026 requirements and 19.029. the of ORS tional’ are requirement those statutes vain for the One searches an or order. be taken from requirement appealable judgment or order is “The of an does not use the word in ORS 19.010. That statute contained merely judgments, and but defines those decrees ‘jurisdiction’ when then, appeal. Arguably, orders that are reviewable on dismisses an because we determine this Court being appealed is not reviewable under ORS document 19.010, ’ ‘jurisdictional, as that term is used in is not defect implication ORS 19.033. The once a notice of prescribed has been within the time and in the manner filed 19.023,19.026 19.029, 19.033(1), in ORS under ORS and during pendency appeal, court has not, regardless ‘jurisdiction’ and the trial court does designated subject whether the document ultimately as the appealable.” is determined not to be (Emphasis supplied.) Honeyman v. previously

We have determined Clostermann,

“failure to file a notice of deprive juris- the corrected [this court] timely diction. obtained We when defendants appealed the trial from the first Our remand to pursuant court with leave to enter a corrected Murray See jurisdiction. did not affect our Deisch, Well-Drilling v. [supra].” provided lead opinion convincing grounds no Clostermann, best, At it has overruling Honeyman supra. v. provided my an alternative construction of ORS 19.033. In view, that than that in Hon- persuasive construction is less eyman Murray Well-Drilling supra Deisch, Moreover, supra. inequitable it leads to absurd and *11 results, I Accordingly, as evidenced the case at bar. dissent.

Deits, J., joins in this dissent.