Appeal from Circuit Court, Multnomah County. Richard J. Burke, Judge.
Jane Edwards and Keith Burns, Portland, filed a brief for appellant.
L. B. Sandblast, Portland, filed a brief for respondent.
In Banc. Tongue, J. O'Connell, C.J., dissenting. Denecke and Holman, JJ., join in this dissent.
Defendant appeals from a judgment of the circuit court dismissing his appeal from a judgment of the district court. That appeal was dismissed by the circuit court on the ground that defendant had failed to file his undertaking on appeal within the time required by statute. We affirm.
ORS 46.250 provides that an appeal from the district court to the circuit court "shall be taken at the time and in the manner provided for taking an appeal from the justice's court." On appeal from the justice court to the circuit court an undertaking must be filed as required by ORS 53.040, which provides:
"The undertaking of the appellant must be given with one or more sureties, to the effect that the appellant will pay all costs and disbursements that may be awarded against him on the appeal. The undertaking does not stay the proceedings unless the undertaking further provides that the appellant will satisfy any judgment that may be given against him in the appellate court on the appeal. The undertaking MUST be filed with the justice within five days after the notice of appeal is given or filed." (Emphasis added)
Defendant filed his undertaking six days after his notice of appeal, instead of five days as required by ORS 53.040. Plaintiff filed a motion to dismiss the appeal upon the ground that it was not perfected as required by ORS 53.040. In support of that motion plaintiff cited our decision in Hulegaard v. Garrett, 251 Or 535, 446 P2d 975 (1968).
Defendant concedes that this court, in a series of six previous decisions, including Hulegaard, and extending from 1886 to 1968, has held that the filing of an undertaking within the time prescribed by ORS 53.040 is mandatory and jurisdictional and that the circuit court has no power to extend the time for filing.*fn1
Defendant asks that we overrule these cases upon the ground that such a rule is "a trap for the unwary"; that it is a "court-made" rule; that in other cases this court has held similar requirements to be nonjurisdictional.*fn2 Defendant also contends that the rule is anomalous because the statute governing appeals from circuit courts to the Supreme Court and Court of Appeals (ORS 19.033 (3)) makes the filing of an undertaking nonjurisdictional by providing that the court has power to relieve a party from omissions in taking an appeal, including the filing of an undertaking, and that "there is no reason why there should be a difference in the procedures for appeal to the circuit courts and to the appellate courts."*fn3
We do not disagree with defendant's contention that there is no good reason why there should be such a difference in two appeal procedures. We cannot agree, however, that the desirability of eliminating that difference can justify the means by which defendant would ask this court to attain that result. We also do not agree with defendant's contention that this is a ...