Decided February 3, 1914.
On Petition for Rehearing.
(138 Pac. 467.)
Mr. Justice Burnettdelivered the opinion of the court.
The defendant in the court below did not answer, or otherwise appear in this action. The Circuit Court *97heard some testimony, after the default of the defendant was entered, and rendered judgment to the effect that the relator was yet the lawful incumbent of the office in question, and would be until the election and qualification of his successor, the defendant never having qualified. Dissatisfied with the uncertain tenure thus awarded him, the relator appealed. The defendant moved to dismiss, but this court, speaking by Mr. Justice McNary, refused to entertain his motion, and dismissed the appeal sua sponte, holding that neither party to a judgment for want of an answer has the right to appeal. The relator now moves for a rehearing on that subject.
4. Section 549, L. O. L., reads:
“Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom. The party appealing is known as the appellant, and the adverse party as the respondent; but the title of the action or suit is not changed in consequence of the appeal.”
Section 185, L. O. L., is partly in these words:
“Judgment may be had upon failure to answer, as follows: When the time for answering the complaint has expired, and it appears that the defendant, or one or more of several defendants, in the cases mentioned in Section 61, has been duly served with the summons and has failed to answer the complaint, the plaintiff shall be entitled to have judgment against such defendant or defendants—
“ (1) In an action arising upon contract for the recovery of money or damages only; if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted by the court or judge thereof, the clerk, upon the application of the plaintiff made in writing and filed with the clerk, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, *98against the defendant, or against one or more of several defendants, in cases provided for in Section 61;
“ (2) In other actions, including all actions sounding in damages or tort, as opposed to an action on contract or for debt, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted by the court or judge thereof, the clerk shall, upon the written motion of the plaintiff being filed, enter the default of the defendant, and thereafter the plaintiff may apply to the court for the relief demanded in the complaint; and the court shall, upon such application, give judgment for the amount claimed in the summons, or the relief demanded in the complaint, unless it be necessary, to enable the court to give judgment or carry the same into effect, to take proof of any matter of fact, in which case the court may order the entry of judgment to be delayed until such proof be taken. The court may hear the proof itself, or make an order of reference, or that a jury be called to inquire thereof. Thereupon the court shall enter judgment in accordance with its own findings, or the verdict of the jury; provided, however, that in all cases where the cause of action is for damage which is not liquidated, if a jury shall, by either party be demanded to assess the damage, the court before which such action is pending must grant such jury trial, or, if neither party demand a jury the damage may be assessed by the court. # # ”
The petition for rehearing proceeds upon the theory that, because the court may in certain cases take testimony in actions where the defendant has failed to answer, and that such testimony has been taken in this case, the judgment is not one for want of an answer within the meaning of Section 549, L. O. L., supra. But what gives the court authority to proceed in the manner indicated? Plainly, the fact that the defendant has not answered. No matter what proceedings are taken after default is entered, the final judgment is none the less one for want of an answer from which neither party can appeal. It is argued that this lodges *99too much responsibility with a judge disposed to act in an arbitrary manner and give a wrong judgment against a plaintiff. This, however, is a legislative question. Responsibility must be lodged somewhere. The same argument would apply to this court, the members of which are as frail and liable to err as any circuit judge. The legislature having declared in effect that there shall be no appeal from a judgment for want of an answer, the court would usurp the functions of that branch of the government should it entertain an appeal of that kind.
5. “An appeal is not a matter of primary right. It is a privilege, and he who would enjoy that privilege must show some statute conferring it upon him”: Portland v. Nottingham, 58 Or. 1 (113 Pac. 28); Portland v. Gaston, 38 Or. 533 (63 Pac. 1051); Sears v. Dunbar, 50 Or. 36 (91 Pac. 145); Union Nat. Bank v. Barth, 179 Ill. 83 (53 N. E. 615); Macartney v. Shipherd, 60 Or. 133 (117 Pac. 814, Ann. Oas. 1913D, 1257). In respect to appeals, this court is a tribunal of limited jurisdiction, and can entertain them only when they are within the purview of the statute. We have no jurisdiction in this case, and can only dismiss it: Fassman v. Baumgartner, 3 Or. 469; Long v. Sharp, 5 Or. 438; Whipple v. Southern Pac. Co., 34 Or. 370 (55 Pac. 975).
We adhere to the former opinion.
Appeal, Dismissed by Court : Rehearing Denied.