State v. Archerd , 144 Or. 309 ( 1933 )

If this were a case of first impression, there might be some force in the reasoning of Mr. Justice ROSSMAN that section 13-1209, Oregon Code 1930, is a statute merely defining the procedure of appeals in criminal cases and that its purpose is accomplished by filing the notice of appeal with the clerk of the court without making any further service upon him. From this he argues that the making of actual service upon the clerk is unnecessary and a vain act. However, the legislature has the power to prescribe the manner in which appeals may be perfected and, in doing so, it has the right to prescribe the doing of acts which to us may seem to be unnecessary. But whether necessary or unnecessary, if the statute is valid, its directions are binding upon the courts. The statute in express terms provides that: "An appeal must be taken by the service of a notice in writing on the clerk of the court where the judgment roll is filed, stating substantially that the appellant appeals from the judgment." It says nothing about the filing of the notice of appeal with the clerk of the court. That requirement is provided by other sections of the code. It does, however, make it essential to the validity of the appeal that the notice shall be served on the clerk and this is equivalent to saying that if the notice of appeal is not so served, the appeal is not perfected.

We have no power to overrule the statute and it is settled law in this state that where the service of the notice of appeal in a criminal case has not been made upon the clerk, the appeal must be dismissed. State v. Horner, 36 Or. 68 (59 P. 549); State v.Blazier, 36 Or. 97 (60 P. 203); State v. Berger, 51 Or. 166 (94 P. 181); State v. Mageske, 119 Or. 312 (227 P. 1065);State v. Berg, 138 Or. 20 (3 P.2d 783).

It is idle now to contend that because some of these decisions were per curiam decisions they did not receive the consideration of the justices who rendered them. They are entitled to the same respect that would be accorded to them if they had not been per curiam decisions. The fact that they were per curiam decisions is evidence, to my mind, that the court considered the statute so plain and performance of its requirements so necessary that no elaboration to uphold the statute was deemed necessary. Nor does the fact that decisions of other states upon the same or a similar statute then in force were cited by this court as authority in any way detract from the force of our former opinions. That the statutes of other states containing the same requirement as ours have since been repealed by the legislatures of those states does not detract from the force of the opinions rendered before those statutes were repealed in those states. Until now this court has never doubted the wisdom of this statute nor failed to give effect to its terms. To do so now, under the same statute which has never been amended by the legislature, would indicate that the court is bound neither by the statute nor by its former decisions.

For these reasons, I concur in the opinion written by Mr. Justice BAILEY.