Ragnone v. Portland School District No. 1J , 289 Or. 339 ( 1980 )

LENT, J.

The issue is whether there is appellate jurisdiction. Plaintiff had judgment upon a jury verdict. The trial court allowed defendant’s motion for judgment notwithstanding the verdict, and plaintiff appealed to the Court of Appeals, which affirmed. Ragnone v. Portland Sch. Dist. No. 1J, 44 Or App 347, 605 P2d 1217 (1980). We allowed plaintiff’s petition for review, ORS 2.520; 289 Or 71 (1980).

During oral argument in this court on June 3, 1980, we questioned whether there was appellate jurisdiction, ORS 2.516 and 19.010. Pursuant to this court’s request a memorandum has been filed since the time of oral argument asserting that appellate jurisdiction does obtain. Both parties joined in that memorandum. We reluctantly have come to the conclusion that the Court of Appeals had no jurisdiction.

Before a court may grant relief to a litigant, there must be some identifiable source of power to enter upon an inquiry of the merits of the claim, Abrahamson v. Northwestern P. & P. Co., 141 Or 339, 343, 15 P2d 472, 17 P2d 1117 (1933). There is no common law appellate jurisdiction in the Court of Appeals, J. Gregcin, Inc. v. City of Dayton, 287 Or 709, 601 P2d 1254 (1979), or in this court, Longee v. Carter, 283 Or 93, 582 P2d 1 (1978).¹

After defendant filed its motion for judgment notwithstanding the verdict or, alternatively, for a new trial, the trial judge sent a letter dated June 14, 1979, to counsel for the respective parties:

"The Defendant’s Motion for Judgment Notwithstanding the Verdict is allowed.

"There was no active negligence committed by the defendant or its agents in this case. The other matters raised by the defendant are absolutely without merit.”

A photocopy of the letter was placed in the trial court file. On the same date the judge signed an "ORDER” as follows:

"Defendant’s Motion for Judgment Notwithstanding the Verdict is allowed.”

It is conceded that prior to June 22,1979, there was no document made and entered giving judgment in favor of defendant and against plaintiff.

On June 22, 1979, plaintiff filed a notice of appeal

"from the Order granting Defendant’s Motion for Judgment Notwithstanding the Verdict entered herein on the 14th day of June, 1979 * * *.”* ²

On July 26, 1979,³ defendant filed a notice of cross-appeal, in which defendant

"cross-appeals to the Court of Appeals of the State of Oregon from the order of judgment notwithstanding the verdict, entered June 14, 1979, * *

Plaintiff has correctly described the document from which she has attempted to appeal as being an order granting a motion. Defendant has not described any document to be found in the trial court file, for there is no "order of judgment notwithstanding the verdict.”

The dissent asserts that the order allowing the motion effectively terminated the case on its merits in favor of the defendant and forever precluded recovery by the plaintiff. We disagree. The order only put the case in a posture for the entry of a judgment which would have had that effect.

Of course it is true that the resulting lack of an appealable judgment under the statute is a matter of "form,” as the dissent says, though we would not describe it as a "triumph.” In some areas of the law, particularly in matters of procedure, it has been thought desirable on balance that trial courts and counsel can rely on the predictable consequences of prescribed procedures. This advantage would be weakened if courts yielded to the frequently natural urge to sacrifice "form” for "substance.” In any event, although rules of procedure might be written to leave this room for flexibility in the individual case, they do not now do so. There may be close questions as to whether a given document made and entered by a trial court judge is a judgment or decree, or is to be deemed a judgment or decree under ORS 19.010(2), but that closeness does not create a "gray area” of appellate jurisdiction delimited by our whim or the desires of the parties. We must decide whether the document is, or is to be deemed, a judgment or decree. If it is, there is jurisdiction; if it is not, there is no jurisdiction.

Despite the fact that both parties have conceded there was no document made and entered giving judgment or judgment notwithstanding the verdict, they urge that the order appealed from is a judgment, for the purposes of appeal, under ORS 19.010, which in pertinent part provides:

"(1) A judgment or decree may be reviewed upon appeal * * *.

"(2) For the purpose of being reviewed upon appeal the following shall be deemed a judgment or decree:

"(a) An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein.

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"(c) A final order affecting a substantial right and made in a proceeding after judgment or decree.”

The statute specifies that it is a "judgment or decree” which may be reviewed upon appeal. The statute then provides that certain kinds of orders are "deemed” to be judgments or decrees for the purpose of review upon appeal.

The parties have cited ORS 19.010(2)(a) as being relevant but do not really argue its efficaciousness. It is enough for us to point out that the order of June 14, 1979, does not prevent a judgment, but rather paves the way for one.

The parties really assert the applicability of ORS 19.010(2)(c). They cite no case which has treated an order allowing a motion for judgment notwithstanding the verdict as coming within the statute. Our own research discloses no such case. That statute has been held applicable to the kinds of orders which may be entered after supplementary proceedings flowing from the judgment or decree upon the merits of the cause. Examples of that kind of order are to be found in the annotations compiled by the staff of Legislative Counsel Committee and printed in ORS volume 7 at pages 193-194. The order of June 14, 1979, is not such an order. Quite to the contrary, that order is one allowing a motion, the purpose of which is to render a nullity the only judgment entered in the cause.

The parties cite Barr v. Linnton Plywood Ass’n, 223 Or 541, 352 P2d 596, 355 P2d 256 (1960) as permitting an appeal from an order allowing a motion for judgment notwithstanding the verdict. We do not so read the case. There the trial court entered an order (in pertinent part) as follows:

"ORDERED that the verdict of the jury * * * and the judgment in favor of the plaintiff and against the defendant * * * be and the same are hereby vacated and set aside, and

"IT IS FURTHER ORDERED that a new trial be had in this cause.”

Initially this court considered that to be an order under then ORS 18.140(3),⁴ which required that when a motion was for judgment notwithstanding the verdict or, alternatively, for a new trial, and the trial court allowed the motion for judgment notwithstanding the verdict, it should also rule on the motion for new trial. Both parties filed motions from which it appeared that the parties had considered the order of the trial court to be one setting aside the judgment and granting a new trial. It is to be remembered that an order setting aside a judgment and granting a new trial was an appealable order under ORS 19.010(2)(d). The decision in Barr is simply that the order was not one granting a new trial, but was rather an order granting judgment notwithstanding the verdict. There is nothing in that decision to suggest that either the court or the parties were concerned with jurisdiction. Until the decision of the court was rendered that the order was not one setting aside a judgment and granting a new trial, the appellant was in the position of prosecuting an appeal under ORS 19.010(2)(d).

We order that this matter be remanded to the Court of Appeals to dismiss the instant appeal⁵ for want of jurisdiction.

1 See, also, Or Const. Art VII (Orig.), § 6:

"The Supreme Court shall have jurisdiction only to revise the final decisions of the Circuit Courts * * (emphasis added)

Further note Or Const. Art VII (Amend.), § 2:

"The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. But the supreme court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.”

In McGarger v. Moore, 89 Or 597, 599, 175 P 77 (1918), after noting these constitutional provisions we said:

"This court, therefore, is one of limited jurisdiction aside from the instances just mentioned. It cannot acquire authority to act except in the manner provided by statute, in a case of the kind before us, and can exercise only power expressly conferred upon it by statute. Except in the stated instances of our original jurisdiction, authority of this court to hear and determine a case is derived from perfection of an appeal.”

That appellate jurisdiction has now been transferred by statute to the Court of Appeals. ORS 2.516.

2 No copy of the order appealed from was attached to the original of the Notice of Appeal as required by Rule 2.10, Rules of Appellate Procedure, but we do not reach the effect of that failure by reason of our finding of want of jurisdiction on other grounds.

3 It appears that the notice of cross-appeal may have been filed two days too late under ORS 19.026 since it was not filed within ten days after 30 days after the entry of the order of June 14, 1979. Also, no copy of the order appealed from was attached to the original of the Notice of Cross-Appeal. We do not reach the effect of those matters because of our finding want of appellate jurisdiction on another basis.

4 OES 18.140 has been repealed, Or Laws 1979, ch 284, § 199. See OECP 63 C.

5 The parties have informed us that a judgment has now been entered in the trial court on June 6, 1980, and an appeal taken therefrom to the Court of Appeals on June 10,1980. Nothing concerning that appeal is now before us.