Custom Harvesting Oregon, Inc. v. Smith Truck & Tractor, Inc.

PER CURIAM

This matter is before us on plaintiffs motion to dismiss the appeal. We allow the motion.

Defendants filed the notice of appeal within 30 days after the trial court denied their motions for judgment notwithstanding the verdict and for a new trial. ORS 19.026(2)(a). They designated “the record in addition to the trial court file in its entirety.” They caused the notice of appeal to be served on two of the three court reporters who reported the trial. ORS 19.023(2)(c). The third reporter was not served until 40 days after the denial of defendants’ motions.

ORS 19.033(2) provides:

“The serving and filing of the notice of appeal as provided in ORS 19.023, 19.026 and 19.029 is jurisdictional and may not be waived or extended.”

Defendants’ failure timely to serve the notice of appeal on a court reporter who, in defendants’ words, “reported the last several days of the trial” deprives this court of jurisdiction. McQuary v. Bel Air Convalescent Home, Inc., 64 Or App 528, 669 P2d 348, rev allowed 296 Or 56 (1983).

The dissent recites the fact that plaintiff has not claimed to be prejudiced, as though that makes a difference. “It is our obligation, whether or not any objection to our jurisdiction is raised by the parties, to refuse to proceed where jurisdiction is lacking.” In re Oregon Mass Transp. Fin. Auth., 284 Or 241, 586 P2d 784 (1978).1

The dissent, decrying a “hard line” on these unambiguous statutes, would rewrite them to provide no line at all. That is not our business, and we decline to do it.

Plaintiffs cross-appealed. Because we dismiss the appeal and because the notice of cross-appeal was not filed within the time allowed for filing a notice of appeal, we dismiss the cross-appeal on our own motion.

*129Appeal dismissed; cross-appeal dismissed.

In McCain v. State Tax Com., 227 Or 486, 360 P2d 778, 363 P2d 775 (1961), the court found that it had no jurisdiction to entertain the appeal, because service of the summons and complaint was made by personal service rather than by registered mail as provided in the statute.