State v. Brooks , 214 Or. 535 ( 1958 )

214 Or. 535 (1958) 331 P.2d 343

STATE OF OREGON
v.
BROOKS

Supreme Court of Oregon.

Argued September 4, 1958. Dismissed November 5, 1958.

Edward N. Fadeley, Eugene, argued the cause and filed a brief for appellant.

Frank R. Alderson, Deputy District Attorney, Eugene, argued the cause for respondent. With him on the brief were Eugene C. Venn, District Attorney, and Roger N. Rook, Deputy District Attorney, Eugene.

APPEAL DISMISSED.

LUSK, J.

This is an attempted appeal by the defendant from an order of the circuit court denying defendant's "motion for an order in the nature of a writ of error coram nobis." The motion was based on newly discovered evidence and was filed after the statutory time for filing a motion for a new trial had expired. The court denied the relief sought on the ground that "the motion for relief in the nature of a Writ of Error Coram Nobis on the grounds of newly discovered evidence does not lie for the purpose of extending the time within which to file a motion for a new trial based on newly discovered evidence."

1, 2. In State v. Endsley, ___ Or ___, ___ P2d ___, this day decided, we held that a similar order was not appealable because there is no statute in this state authorizing an appeal in cases where relief is sought by way of a motion in the nature of coram nobis. The State has not moved to dismiss this appeal. Where, however, it is apparent, as it is here, that this court is without jurisdiction of an appeal, it is the duty of the court to raise the question on its own motion and to proceed no further with the case. Our decision in the Endsley case is controlling. The appeal is therefore dismissed.