On the same day that the challenged notice of appeal was served and filed, the appellant served and filed a document captioned as follows:
"IN THE CIRCUIT COURT OF THE | STATE OF OREGON | FOR MARION COUNTY | No. 22798 | NORTHWESTERN NATIONAL INSURANCE | COMPANY, a corporation, | and R.N. KAVANAUGH, Plaintiffs, | vs. | A.H. AVERILL, as Insurance Commissioner | of the State of Oregon, | Defendant." |
From the first paragraph of the instrument, we quote the following:
"* * * NORTHWESTERN NATIONAL INSURANCE COMPANY of Milwaukee, Wisconsin, a corporation, and R.N. Kavanaugh, plaintiffs in the above entitled Court and cause, appeal to the Supreme *Page 693 Court of the State of Oregon from that certain judgment heretofore, to wit: on June 29th, 1934, rendered and entered in the above entitled Court and cause in favor of the defendant, A.H. AVERILL, as Insurance Commissioner of the State of Oregon, and against the plaintiffs, NORTHWESTERN NATIONAL INSURANCE COMPANY of Milwaukee, Wisconsin, a corporation, and R.N. KAVANAUGH."
The instrument is signed thus:
"NORTHWESTERN NATIONAL INSURANCE COMPANY of Milwaukee, Wisconsin, By Guy E. Kelly, Its Attorney,
R.N. Kavanaugh R.N. Kavanaugh
NATIONAL SURETY CORPORATION, By W.R. Gilham, Attorney-in-Fact."
Section 7-503, Oregon Code 1930, provides:
"If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may cause a notice signed by himself or attorney, to be served on such adverse party. * * * Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order or decree or some specified part thereof."
Thus, the requirements are (1) title of the cause; (2) names of the parties; (3) notification of appeal; (4) identification of judgment; and, possibly, (5) signature by party or attorney. Reverting to the aforementioned instrument, it will be observed that it contains every requirement exacted by our statute; not a single item is missing. The title of the cause is stated; the names of the parties are given; notification of purpose to appeal is declared; the judgment from which *Page 694 the appeal is to be taken is clearly identified; and the signatures of the parties are subscribed to the instrument. If Guy E. Kelly, who signed the plaintiff's name to the instrument, was authorized to do so by his client, the signature is valid. Our statute does not provide that the signature must be attached by a member of the Oregon bar. A presumption exists that Kelly possessed the requisite authority: Mechem on Agency (2d Ed.) § 268, and 21 R.C.L., Principal and Agent, p. 858, § 36. Moreover, as will be observed, the word "by" also precedes the name of R.N. Kavanaugh, who is a member of the Oregon bar. Kavanaugh then drew a line under his name, after which he signed in his own behalf. He, too, is a plaintiff. We have intentionally omitted mention of the fact that this instrument is entitled "Undertaking" and that the above-quoted paragraph is succeeded by two others wherein the principals and their surety undertake to pay whatever costs may be adjudged on appeal. But the mere fact that, besides being a notice of appeal, it is also something else does not deprive it of its quality as a notice of appeal. The statute does not require that the notice of appeal and the undertaking must be written on two separate sheets of paper. Had it been labeled "Notice of Appeal and Undertaking" no one would question its efficacy. A wrong label never vitiates a jural document. Instruments are tested by their contents, not by the label. Hence, here we have an instrument which conforms strictly to the requirements of our statute, and which, in itself, constitutes a sufficient reason for deeming the appeal valid. The appeal should not be dismissed.
But if further reasons for sustaining the appeal are needed, they are present. If our decision entitled Estate of Nelson,101 Or. 14 (198 P. 892), cited by the *Page 695 majority, holds that an appeal must be dismissed, even though the respondent has waived a defect in the notice of appeal by (1) filing a brief which argues the merits of the action; (2) appearing generally upon the day of the argument and not only protesting against the proposed dismissal of the appeal, but also declaring that a dismissal "so far as the defendant in this case is concerned will be a matter of great regret", then it seems clear that the decision should be cited only for the purpose of being overruled. But the decision in Estate of Nelson does not warrant the action which the majority proposes to take. In that case the prospective respondent filed no brief upon the merits of the cause. He appeared for a single purpose only: to move for the dismissal of the appeal. Nothing that he did could be deemed a waiver of the purported defect in the notice of appeal. Furthermore, the dismissal was not by the court upon its own motion, but the motion of the prospective respondent. In that case, one Johnson had sought in the county court to be appointed administrator of Nelson's estate. When his application was denied he filed a notice of appeal signed by an attorney who was not a member of the Oregon bar. The executors thereupon filed in the circuit court a motion which stated: "* * * appearing specially for the purposes of this motion * * * move the Court to dismiss the pretended appeal". From an order of the circuit court sustaining the motion, Johnson appealed to this court where the order was affirmed. In the instant case the respondent has never moved for a dismissal of the appeal. Disregarding this technical defect, which so much impresses the majority, defendant's counsel (the attorney general) filed a brief of forty-seven pages which concerns itself solely with the merits of the cause. When the cause was *Page 696 called for argument and an intimation was made that the appeal would have to be dismissed on account of the aforementioned purported defect, the attorney general stated that he would gladly waive the defect, but that if the dismissal were made he would regard it with great regret. Thus, we see that there is a vital distinction between the circumstances in this case and those present in Estate of Nelson. Before proceeding with a further discussion of the legal principles applicable to the contemplated dismissal, let us turn once more to the remarks of the attorney general which were made upon the oral argument. At that time, referring to the appellant, he declared: "If it is denied the right to submit the matter to this court it would be without further relief." This is, therefore, a matter of grave consequence to the appellant.
Before considering the waiver feature, let us determine whether the fact that the notice of appeal is signed by an attorney who is not a member of the Oregon bar denies to it validity. Plaintiff's attorney has been authorized to practice his profession by the supreme court of the United States, by the Federal circuit court of appeals, by the Federal district court, and by the supreme courts of the states of Washington and South Dakota. In holding that a notice of appeal, not signed by a local attorney, is invalid, the decision in Estate of Nelson stands alone although numerous other states have statutes similar to ours. From the earliest of times the courts have refrained from penalizing the client for the failure of his attorney to comply with some regulation imposed upon the profession. The following excerpt taken from DesBrisay v. Mackey, 12 N.B. 138, gives a good review of the English decisions:
"`* * * The construction given to these statutes is, that the neglect of the attorney to take out his *Page 697 certificate, will not prejudice the proceedings in the suit, so as to injure the client.' Chit. Arch., 8th ed., 51; Tidd's Pr., 73; 2 Chit. Gen. Pr., 16. `The reason for this,' says Best, C.J., in Reeder v. Bloom, (3 Bing. 10,) `is, that the statutes show that the Legislature never intended to touch the suitor, becauseall the punishment they inflict is directed against theattorney, who, if he practices without a regular title, is disabled to sue for his costs.' In Smith v. Wilson, (1 Dowl. 545) it was held that a judgment signed by an uncertificated attorney was not irregular; so, bail may be put in by an uncertificated attorney. Anon. 2 Chit. R. 98. In Welch v. Pribble, (1 D. Ry. 215,) it was held to be no ground for cancelling a bail bond, that the attorney who sued out the writ had not taken out his certificate. Bayley, J., saying that the interests of the client were not to suffer by the negligence of the attorney. Hilleary v. Hungate, (3 Dowl. 56,) and Glynn v. Hutchinson, (3 Dowl. 529,) were decided on the same principle. The only case we have found where a different rule was adopted, is Patterson v. Powell, (9 Bing. 620,) where a notice of trial, given by an attorney who had omitted to take out his certificate, was set aside as irregular. The Court said, `the notice was signed by one who had not taken out his certificate, and therefore was not entitled to practice at all.' None of the authorities appear to have been cited in this case. Under the Stat. 6 and 7 Vict., c. 73, it has been held that an uncertificated attorney may be a good attesting witness to a warrant of attorney. Holdgate v. Slight, (9 Law Eq. R., 331.) Erle, J., in giving judgment, says: `The statute 6 and 7 Vict., c. 73, § 2, enacts that no person shall act as an attorney unless admitted and enrolled, and otherwise duly qualified. Admission and enrollment are considered conditions precedent to the power of acting as an attorney. But when we come to Sect. 26, the clause relating to the effect of the want of a certificate, we find the provision that no person who as an attorney shall sue, prosecute or carry on any action, suit or other proceeding, without having previously obtained a stamped certificate, shall be capable of *Page 698 maintaining any action for his fees for carrying on such business. It seems to me, therefore, that an attorney, though uncertificated, may do acts in his capacity of attorney, which shall be valid, but that the result will be that he will in such case lose his fees.'"
The decision from which the above quotation was taken held that the proceedings conducted by the unlicensed attorney were without validity, under the belief that the Canadian statute expressly required such a holding.
In Elson v. Sullivan (Iowa), 186 N.W. 769, a defect in the notice of appeal similar to the one before us existed. We quote from the decision:
"The second ground was that plaintiff's attorney, who assumed to act for her in the matter of taking such appeal, had not been duly admitted to practice. This was sufficient ground why he should not be permitted to practice. We do not deem it sufficient ground for dismissal of defendant's appeal."
In North Laramie Land Co. v. Hoffman, 27 Wyo. 271 (195 P. 988), and 26 Wyo. 327 (184 P. 226), the Wyoming court was confronted with a motion to dismiss an appeal based upon the circumstance that the petition in error was not signed by a Wyoming attorney. It bore the signature of a member of the Illinois bar. The Wyoming practice required such papers to be signed by an attorney, and defined an attorney in language similar to the Oregon statutes. The court, in its first decision (above cited), sustained the motion and thereby dismissed the appeal. A motion was then made by the appellant for a reconsideration. Upon reconsideration, the court, in a lengthy decision, reversed itself and held that the mere fact that the signer of the petition in error was not a member of the local *Page 699 bar did not deny it validity. Its second decision is above cited. We now quote from it the following:
"And upon further consideration of the matter, we are fully persuaded that the former decision, declaring the petition in error to be a nullity and insufficient to commence the proceedings, is erroneous. No briefs were filed at the former hearing on the motion to dismiss, and the argument at that time, as we recall it, did not touch particularly the question of whether the failure to properly sign a petition was a mere formal defect, or rendered the petition a nullity, but was confined to the question whether the court had acquired jurisdiction by reason of the entry on the docket of the appearance of local counsel for plaintiff in error and the County Attorney of Platte County as attorney for defendants in error and the application of other counsel for defendants for an extension of time to file briefs, which was filed concurrently with the motion to dismiss. We feel sure, at least, that the authorities now brought to our attention as to the effect of a failure to sign a petition were not cited at the former hearing. Nevertheless we do not place the fault of our error aforesaid altogether upon counsel. We were led into the error, without thoroughly investigating the authorities, thinking that the question before the court was chiefly the right of the nonresident attorneys to sign alone the petition, and with that the effect of a mere docket entry of the appearance of associate counsel but which was deemed insufficient to cure what was then considered to be a jurisdictional defect.
The petition in error not having been subscribed by anyone having authority to subscribe it, it stood as an unsigned petition. But by the clear weight of authority, under our and similar code provisions, a petition not signed or improperty signed, whether it be a petition to commence a civil action or a petition in error, is not a nullity, and the failure to properly subscribe the same is merely a formal defect, which may be waived, or may be cured by amendment; and to correct a mere matter of form, an amendment of a petition in error may be allowed even after the expiration of the *Page 700 time for bringing the proceedings. (31 Cyc. 524; 1 Standard Proc. 905; 3 C.J. 1090, note 8; Conn. v. Rhodes, 26 O. St. 644; C.H. D. Ry. v. Bailey, 70 O. St. 88, 70 N.E. 900; Bantz v. Rover, 14 O.C.C. (N.S.) 218; Moore v. Moran, 64 Nebr. 84, 89 N.W. 629; Gulf Railroad v. Owen, 8 Kan. 409; Manspeaker v. Bank,4 Kan. App. 768, 46 P. 1012; Sims v. Dame, 113 Ind. 127; Coleman v. Bercher, 94 Ar. 345; 126 S.W. 1070; West Mountain L. S. Co. v. Danley, 38 Utah 218, 111 P. 647; McIntyre v. Smyth, 108 Va. 736, 62 S.E. 930; Carter v. Atkinson, 12 Ga. App. 390,77 S.E. 370; Baird v. Prewitt, 158 Ky. 793, 166 S.W. 771; Cochran v. Thomas, 131 Mo. 258, 33 S.W. 6; O'Donnell v. Chambers, Tex. Civ. App., 163 S.W. 138,). And see, Riordan v. Horton, 16 Wyo. 363,94 P. 448; Toledo v. Converse, 65 O.St. 401, 62 N.E. 438, holding a petition in error to be amendable as to matters of form after the time allowed for bringing error proceedings, and under similar code provisions, the following cases to the same effect: Cogshall v. Spurry, 47 Kan. 448, 28 P. 154; Bruner v. Nordmier,48 Okla. 415, 150 P. 159; Haynes v. Smith, 29 Okla. 703,119 P. 246."
These two are the only decisions, apart from Estate ofNelson, concerning the validity of a notice of appeal signed by a nonresident attorney which our examination of the authorities has brought to light. It will be observed that in none of these three decisions had the respondent made a general appearance. To the contrary, in all three of these instances he was the one who moved for the dismissal of the appeal. It occasionally happens that an attorney who is not a member of the local bar signs some process and the question then occurs as to the validity of the instrument. An instance is Rader v. Snyder, 3 W. Va. 413, from which we quote the following:
"Moreover, if the suit was brought by an attorney not qualified to practice, that was no good cause to dismiss the plaintiff's suit, but the attorney should himself suffer the punishment imposed by law." *Page 701 See also Peterson v. Parriott, 4 W. Va. 42, Rouiller v.Schuster Co., 212 Fed. 348, and Richards v. Bostock, 31 The Times Law Reports, 70. The following is taken from 30 A.L.R. 715:
"The courts in general hold that the absence of the signature of the judge from a judgment or decree, or from the minutes, in no way affects the validity of the judgment or decree, even though such signature may be required by statute. * * *"
Here follows a lengthy compilation of authorities.
Thus, we see that the decision entitled Estate of Nelson stands alone, and that the reasoning employed by the early English courts, as well as present-day American courts, far from lending it support, demands a conclusion that the notice of appeal was sufficient. If the majority cannot perceive the difference between the facts present in Estate of Nelson and those now before us they ought to overrule that decision rather than follow it. A conclusion is clearly warranted that the present notice of appeal is not invalid merely on account of the fact that a nonresident attorney signed it.
But waiver is still another reason why the appeal should not be dismissed. It is a matter of such vital consequence to our practice that we feel impelled to set forth our views at sufficient length.
In Estate of Nelson the decision declares: "A notice of appeal is jurisdictional and every requirement of the law prescribing the time and means of taking the appeal is jurisdictional and cannot be waived by the parties or the court." As we shall shortly see, this court has disregarded defects in notices of appeal. The defects to which we shall call attention were failures to comply with requirements of § 7-503, Oregon Code 1930, as positive as the requirement concerning signature. In the early decision entitled Oliver v. Harvey, *Page 702 5 Or. 360, this court for the first time stated that the service of the notice of appeal was jurisdictional. It is difficult to understand how a notice of appeal can confer jurisdiction upon this court. Jurisdiction of the cause is conferred by the constitution of this state. Jurisdiction over the prospective defendant is obtained by the service upon him of a notice of appeal. It performs the same function as a summons. Section 7-503, Oregon Code 1930, does not grant to defeated litigants the right to take an appeal. That right was conferred when the people, through the constitution, created the supreme court as an appellate court. Section 7-503 merely prescribes and regulates the manner in which an appeal may be taken. The defendant, by timely application, may take advantage of the would-be appellant's failure to comply with the requirements of this statute. Notwithstanding these principles, which are recognized by most courts, the early decision of Oliver v. Harvey talked about the notice of appeal as being "jurisdictional". The manner in which that error crept into our jurisprudence can be plainly traced. In Oliver v. Harvey the notice of appeal stated: "S.H. Oliver appeals from the judgment of the circuit court of said county", but did not mention the county. This defect was held to be fatal, but the appellant argued that a stipulation which was "signed by the counsel for the respective parties, continuing this cause from the last August term of this court until this term", constituted a general appearance and argued that the general appearance waived the defect in the notice of appeal. While disposing of this contention, Mr. Justice PRIM, the author of that decision, spoke of the notice of appeal as being jurisdictional. He cited Bonds v. Hickman, 29 Cal. 460, as the sole authority for the holding. He lifted out of Bonds v.Hickman one of its *Page 703 paragraphs and used it as his own language, failing to credit it to the California court. It was in this paragraph that the unfortunate error crept into our Oregon jurisprudence. Bonds v.Hickman, however, held to the direct contrary of Oliver v.Harvey, and had Mr. Justice PRIM followed the authority of the case he cited, and from which he took one of its paragraphs, the appeal in Oliver v. Harvey would not have been dismissed. InBonds v. Hickman the transcript on appeal contained no notice of appeal whatever, but it did recite the following stipulation: "Notice of appeal admitted as duly filed and served, also * * *." We now quote from the California decision:
"The respondent moves that the appeal be dismissed on the ground that the Court had no jurisdiction of the case, because, as he alleges, no notice of appeal was filed. The motion is based on a certificate of the Clerk of the District Court, and an affidavit stating that in fact no notice of appeal was filed. In the counter affidavit filed by the appellant, it is not stated that a notice of appeal was filed."
The court declined to dismiss the appeal and held the respondent bound by the recitals of the stipulation. In so holding, the court declared that the principles embodied in the paragraph which Mr. Justice PRIM later lifted from the decision and employed in Oliver v. Harvey were not determinative of the issue. Two pages beyond the unfortunate paragraph, printed in italics, is the following headline:
"A stipulation in a transcript that notice of appeal was filedcannot be attacked by affidavits."
Thus, in Oliver v. Harvey, which manifestly indicates carelessness of preparation, the principle upon which the majority relies unfortunately crept into our jurisprudence.Oliver v. Hardy declares that the California statutes regulating the filing and service of the notice *Page 704 of appeal are "exactly like ours". As we shall later see, California holds that a general appearance constitutes a waiver of a defective notice of appeal. Wolf v. Smith, 6 Or. 74, is the next case construing our statute regulating appeals. That case was originally commenced in the county court of Polk county. The defendant in the county court recovered judgment. The plaintiff then appealed to the circuit court, but before the cause was tried in the circuit court the papers became lost and an order was thereupon made permitting the substitution of copies. In the circuit court the plaintiff recovered judgment. Then — that is, after the plaintiff had recovered judgment in the circuit court — the defendant moved to dismiss the appeal from the county court. This court sustained the motion because the parties, in making substitution of the lost papers, neglected to insert in the record a copy of the lost notice of appeal. The decision stated:
"The fact that the parties appeared and that the cause was thereupon heard and determined in the circuit court cannot be taken as curing the defect. In Oliver v. Harvey, 5 Or. 361, it was held that even a waiver of filing a notice of appeal by stipulation is not equivalent to filing the same, and that consent cannot confer jurisdiction. The appeal is jurisdictional and must be taken in the mode prescribed by the code (29 Cal. 461) . The appellant must bring into the appellate court a perfect record. (27 Ind. 1)."
Thus, the holding in Bonds v. Hickman was again misinterpreted, and the fact that the parties retried the case in the circuit court, resulting in the entry of a judgment, availed them nothing. Had Bonds v. Hickman (which is 29 Cal. 461) been followed, the appeal would not have been dismissed. Apparently this court, in taking that view, believed there was something sacrosanct about the statute governing the notice of *Page 705 appeal which even a final just judgment of the circuit court could not surmount. It will be observed that 27 Ind. 1 was cited as authority for the new development. (The citation should be27 Ind. 11.) In that case the defect was not in the notice of appeal but in the failure to bring to the appellate court the complaint — a very different proposition. In Archey v. Knight,61 Ind. 311, we have virtually the same situation that was before this court in Wolf v. Smith. In that case, the plaintiff had recovered a judgment in the lower court and the defendant appealed to the supreme court, but neglected to serve the notice of appeal upon the plaintiff. The latter's attorney, however, went to the office of the clerk of the supreme court where, upon giving his receipt, he was permitted to withdraw the transcript and the defendant's brief which he kept for many days. The court, being unaware of the fact that no notice of appeal was served, called the case for argument, and later announced its decision reversing the judgment in plaintiff's favor. Then the plaintiff moved to dismiss the appeal. This the court declined to do, stating that the plaintiff had notice of the appeal and that his motion to dismiss came too late. Thus, we see that neither27 Ind. 11 (cited in Wolf v. Smith, 6 Or. 74) nor the Indiana practice, as revealed in the decision just reviewed, supportWolf v. Smith.
As is plainly evident, the decisions in Oliver v. Harvey andWolf v. Smith were carelessly prepared. No comment is needed. Yet these two decisions which unfortunately misinterpreted the effect of Bonds v. Hickman laid the foundation for the proposition that the notice of appeal is somehow jurisdictional, and they are in reality the authorities upon which the majority depend. *Page 706
From time to time in subsequent decisions Oliver v. Harvey and Wolf v. Smith were frequently cited as authority for the proposition that the notice of appeal is jurisdictional, and that the appellant must bring to this court a perfect record. For a while the decisions adhered rigorously to the principles announced in those two early cases. For instance, in Poppletonv. Nelson, 10 Or. 437, the appeal was dismissed even though the notice of appeal, perfect in form, was signed by the would-be appellant, instead of by his attorney. In Rodman v. Manning,50 Or. 506 (93 P. 366), the notice of appeal as it appeared in the transcript showed that it was filed August 26 and served September 26. The motion to dismiss the appeal was allowed on account of this seeming discrepancy which was nothing more than a typographical error. The appeal was dismissed even though the respondent had filed his brief in this court. Oliver v. Harvey and Wolf v. Smith were both cited as authority for the proposition that a defect in the notice of appeal could never be waived. Lecher v. St. Johns, 74 Or. 558 (146 P. 87), brought to this court a notice of appeal in which the judgment from which the appeal was taken was thus described: "The judgment made and entered on the 23rd day of July, 1914, in the circuit court for the state of Oregon for the county of Multnomah." This description was held insufficient because "there are several departments of the circuit court of the state of Oregon for Multnomah county". As stated in Lee v. Gram, 105 Or. 49 (196 P. 373, 209 P. 474, 27 A.L.R. 1001), this decision "ignored the title of the cause and the names of the parties although made elements of sufficiency by the statute".
In Lee v. Gram, just cited, this court made a new start in an effort to simplify the process of taking appeals. *Page 707 It there sought to rid our practice of the numerous refinements and technicalities which, as there stated, had resulted in the dismissal of "cases in considerable number". That decision, written by Chief Justice BURNETT, took as its starting point 1899 Session Laws, page 227, adopted 23 years previously. Lecher v.St. Johns, supra, was decided 16 years after the enactment of the 1899 Session Laws yet it did not mention that liberalizing statute. In Lee v. Gram the notice of appeal and the undertaking described the judgment from which the appeal was being prosecuted as having been rendered November 28, 1920, whereas, the truth was that the judgment was rendered October 28, 1920. The motion to dismiss the appeal was, nevertheless, denied, the decision stating: "The decisions of the courts and the legislation affecting the question have been most liberal in practice. * * *. Under the present statute the only indicia required by law to identify the judgment are the title of the cause, the names of the parties and notification to the adverse party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order or decree." The decision concluded as follows: "In view of the liberal legislation upon the subject and the equal leniency of the court in dealing with this matter in the decisions of later years, we conclude that the notice here involved is sufficient." It will be observed that in Lee v. Gram the decision stated that one of the "indicia required by law to identify the judgment" is "the names of the parties". In In Re Water Rightsof Willow Creek, 119 Or. 155 (236 P. 487, 236 P. 763,237 P. 682, 239 P. 123), we again liberalized upon the practice. The notice of appeal in that case described the appellants as "Willow River Water Users Association, including all of the *Page 708 members thereof". The motion to dismiss the appeal was predicated upon the fact that none of the parties to the case bore the name just mentioned. That title was applied for convenience in designating the 40 or so persons who were the real plaintiffs. In denying the motion, the decision stated: "By referring to the transcript, the names of the members of the association are readily ascertainable. There cannot possibly be any confusion resulting from the use of Willow River Water Users Association. All the parties to this litigation are familiar with the names of those composing the association. * * * It has been frequently held by this court that the transcript may be used to determine the sufficiency of the notice of appeal where it is ambiguous or defective." Thus, we see that although our statute requires that the notice of appeal shall give the names of the parties, a failure to do so will not be deemed a ground for dismissal, provided the information is contained in some other part of the transcript. Yet it will be observed that the requirement that the notice of appeal state the names of the parties is just as positive as the requirement that the notice be signed by the appellant or his attorney. In State ex rel. v. Fendall, 135 Or. 142 (295 P. 194), the notice of appeal was signed by neither the state nor the district attorney but (according to the motion challenging its sufficiency) "was signed by private attorneys who had no authority to represent plaintiff, the State of Oregon". Under our statute § 5-606, Oregon Code 1930, the district attorney had absolute control of the action involved in that decision: Baskin v. Marion County, 70 Or. 363 (141 P. 1014). Neither the verity of the quoted statement nor the application of the aforementioned section of our code was challenged by the appellant; nevertheless, the *Page 709 motion to dismiss was denied because the reply, which, of course, was no part of the notice of appeal, bore the signature of the attorneys who had signed the notice of appeal. In so holding, we overruled Baskin v. Marion County, supra, which held to the direct contrary, and which deemed the legal principle involved so simple that "we deemed an opinion unnecessary" until a petition for a rehearing was filed. In the Baskin case the attorney who signed the notice of appeal, according to the transcript, represented the county in the circuit court as its sole attorney. In overruling that decision in State ex rel. v. Fendall, supra, we thought so little of the Law of Precedents, which now weighs so heavily upon the minds of the majority, that we did not even mention Baskin v. Marion County. Thus, in Lee v. Gram, in InRe Water Rights of Willow Creek, and in State ex rel. v.Fendall we finally got away from the myth that the notice of appeal must be perfect and that it must contain every item of information that § 7-503 specifies. The Chinese wall erected by the erring hands of 5 Oregon and 6 Oregon for the protection of the appeal statute was at last pierced. The false work was demolished. A means was discovered whereby one appealing in good faith could reach this court, even though he committed some minor breach of the statute. Substantial compliance sufficed, even though the respondent moved to dismiss and made no general appearance. The holdings, therefore, do not regard the appeal as dependent solely upon the notice of appeal, but permit the judge to cast a wandering eye upon other portions of the record so that aid may be given to a defective notice. Without reviewing our recent decisions at greater length, it suffices to state that they clearly indicate that Oliver v. Harvey and Wolf v.Smith, together with their offspring, have passed *Page 710 into the beyond where they no longer influence our present practice. In fact, in In Re Water Rights of Willow Creek, supra, we reiterated the language of Mr. Chief Justice McBRIDE employed in Oxman v. Baker County, 115 Or. 436 (234 P. 799,236 P. 1040), wherein he declared: "It is not the policy of the courts to seek occasion to dismiss appeals upon merely technical grounds." In In Re Water Rights of Willow Creek the decision branded the ground upon which the motion to dismiss was predicated (failure to give the names of the parties appellant) as "very technical" and, as we have seen, denied the motion. InBanfield v. Schulderman, 137 Or. 256 (299 P. 323,3 P.2d 116), a motion to dismiss the appeal was denied, although the notice of appeal was prematurely given and in so doing our decision quoted from an opinion of the supreme court of Washington as follows:
"The statute governing appeals should be liberally construed to the end that parties may have a review by this court of the rulings of the superior court when they so desire."
Reverting to the decision of the majority, it will be observed that they hold that the notice of appeal must be "in strict conformity to the statute". But, as we have seen, we got away from these technicalities and refinements in 1922 when Lee v.Gram was written. We there freed ourselves from a subservient attitude towards a literal interpretation of the statute when literal interpretation served no good purpose but defeated the ends of justice. We there freed ourselves from the cobwebs of our ancient decisions by referring to a statute enacted 23 years previously. Now, to announce that a notice of appeal must be "in strict conformity to the statute" is a throwback which is *Page 711 unworthy of this court and which will only be a source of constant embarrassment.
In Oliver v. Harvey, Mr. Justice PRIM pointed out that the California statute is "exactly like ours". A comparison of § 7-503, Oregon Code 1930, with the California legislation in effect when the California decisions, which we shall shortly review, were decided reveals that no substantial difference exists between the two. In deciding Oliver v. Harvey and Wolfv. Smith we veered away from the California practice, even though we cited a California decision as authority for our holding. But in Lee v. Gram we entered upon a new course which, as applied and extended in recent holdings, has brought us to the point where we now virtually deem that a notice of appeal performs a function similar to that of a summons. Instead of believing that a notice of appeal is somehow "jurisdictional", we have begun to construe the statutes which authorize its use as mere regulations of the right of appeal. One who seeks to avail himself of the right must comply with the statute or otherwise have his appeal dismissed upon motion of his adversary. That being true, a technical breach of the statute is subject to waiver. Nothing to the contrary is demanded by the fact that § 7-503, Oregon Code 1930, provides: "An appeal shall be taken and perfected in a manner prescribed in this section and otherwise." These words merely forbid the use of other competing methods of appeal and were not intended to invoke technical compliance with the requirements of the statute. We now turn to the California practice and quote from 2 Cal. Jur. § 117:
"It is well established that an appellate court may obtain jurisdiction of an appeal as well by voluntary appearance by an adverse party as by service of notice of appeal upon him. The requirement that notice of *Page 712 appeal be served upon the adverse party is for the protection of such adverse party, and the service of the notice, like service of a summons, may be waived by him or his attorney, and is waived by a voluntary appearance."
The manner in which the practice operates is well illustrated in Salisbury v. Yawger, 184 Cal. 783 (195 P. 682), wherein one of the judges of the Court of Appeals, upon his own motion, dismissed the appeal. From his order an appeal was taken to the supreme court. The decision of the latter pointed out that while the notice of appeal was defective, nevertheless, since the respondent had actual notice, as was indicated by one of his letters, the lower court had acted erroneously. The appeal was reinstated.
The federal supreme court says nothing about the notice of appeal being jurisdictional. It treats such a notice as a summons and if the notice accomplishes the purpose of bringing the respondent into court the appeal is sustained notwithstanding irregularities: Bigler v. Waller, 12 Wall. 142 (20 L. Ed. 260), and United States v. Gomez, 1 Wall. 690 (17 L. Ed. 677). One need not cite the numerous provisions of our statutes which prescribe in detail the contents of a summons and specify the manner in which each shall be signed and served. These provisions are certainly far more exacting than the provisions regulating the notice of appeal. No comment is needed to show that a prospective defendant is more in need of these statutory protections than he is in need of the protection afforded by § 7-503. Yet irregularities of the contents or service of a summons are universally regarded as waived by a general appearance: Bowers, Process and Service, §§ 9 to 18. It is impossible to understand why the principles applicable to a summons should not be equally applicable to a notice of appeal. The federal supreme court has held *Page 713 that the immunity from suit granted to states by the eleventh amendment to the federal constitution may be waived by general appearance: State of Missouri v. Fiske, 290 U.S. 18 (78 L. Ed. 145, 54 S. Ct. 18). It will be recalled that the eleventh amendment provides: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by * * *." If, notwithstanding this constitutional provision, the court can acquire jurisdiction over a state, it is certainly most unreasonable to hold that voluntary appearance cannot waive a defect created by a minor infraction of § 7-503.
A few moments ago a copy of the decision of Mr. Justice BAILEY was received. He states: "An appeal to this court from the circuit court is a new proceeding." He fails to distinguish between a review instituted by a writ of error which is commonly regarded as the commencement of a new suit (3 C.J., Appeal and Error, p. 304, § 12) and a review instituted by an appeal which is commonly regarded as nothing more than a continuation into the appellate court of the suit pending in the trial court: 2 R.C.L., Appeal and Error, p. 28, § 4. An appeal subjects the purchaser, therefore, to the doctrine of pendente lite, while the writ of error does not.
The same decision seeks to distinguish the holdings in NorthLaramie Land Co. v. Hoffman, 27 Wyo. 271 (195 P. 988), and26 Wyo. 327 (184 P. 226), by stating: "Had it not been for the fact that a local attorney was associated with the nonresident attorneys in that instance the `defective' petition in error could not have been amended." But the attempted distinction entirely overlooks the fact that one of the appellants in this case (R.N. Kavanaugh), who was a party *Page 714 plaintiff in the circuit court, is a member of the local bar in good standing. It will be observed from the document previously quoted that he is associated in this cause with Mr. Kelly.
The efforts of the specially concurring opinion to distinguish between the jurisdiction of this court and that of the circuit court for the purpose of showing that the rules applicable to a summons ought not be applied to a notice of appeal are fruitless. Of course, there is a distinction between the two courts, as there also is between the courthouses in which the courts are held, but the question still remains, is there a distinction between the function performed by a notice of appeal and that performed by a summons? None has been pointed out. The mere fact that a respondent, served with a defective notice, may file his brief after the 60-day period avails nothing. In the present instance the notice of appeal was served within the 60-day period. Had the notice of appeal met all the requirements exacted by the majority the brief would not have been filed an instant sooner. In the circuit court a defendant has only a limited period of time in which to appear. Yet if he appears after that time, in response to a defective summons, jurisdiction has been gained. It may even be true that he appears after the statute of limitations has run.
The observation is made in the specially concurring opinion that waiver is never available where the statute affords only a limited period of time in which to take an appeal. It will be remembered that California subscribes to the doctrine of waiver. We now quote from Deering's Code of Civil Procedure and Probate Code (1931) § 939:
"An appeal may be taken from any judgment or order of a superior court from which an appeal lies *Page 715 under any provision of this code, or of any other code, or under any other statute, within sixty days from the entry of said judgment or order."
It would be most unfortunate to dismiss this appeal. In this proceeding the parties availed themselves of the privileges afforded by §§ 2-1301 to 2-1303, inclusive, Oregon Code 1930, by submitting the controversy without action, thereby virtually dispensing with the need for attorneys and availing themselves of counsel as defined in Estate of Nelson, supra. Since jurisdiction can be conferred upon the circuit court in that manner, it is difficult to believe that something different is required to invoke the action of this court.
But, now that the majority have spoken, and have established the principle that an appeal must be dismissed upon the court's own motion merely on account of some defect in the notice of appeal, let us try to foresee what would happen in the event that a similar defect should be present in the notice of appeal filed in a capital case, or in any other case of grave concern to the parties or to the state. Let us assume that before the defect is discovered we have announced our decision, pointing out that flagrant error was committed in the circuit court. Would we then, upon discovery of the defective notice of appeal, recall our decision and, upon our own initiative, dismiss the appeal, thereby consigning the appellant to the unjust decision? If not, are we going to do so in this case because, as is pointed out by the majority, the present appellant happens to be a nonresident, seeking the protection of our constitution?
I dissent.
BELT, J., concurs.
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