concurring.
If we were writing on a clean slate, I would agree entirely with the disposition of the lead opinion. However, we are not, and that is the reason why this case is before us.
I believe that ORS 19.033(4) was intended to have a very limited purpose: to permit this court to obviate the necessity of dismissing an appeal from a nonfinal judgment by permitting the court to grant leave to the trial court to enter an appealable judgment under the circumstances set forth in subsections (a) and (b) of the statute. On its face, that is all that the statute permits. However, it does not say what happens or what must be done after a new, appealable judgment is entered by the trial court. It seems clear, however, that the case remains pending in this court, unless and until we dismiss it for want of jurisdiction.
A very broad reading of the statute would be that, once an appealable judgment has been entered by the trial court, if the appellant files that judgment with this court, we could proceed to decide the merits of the case. Certainly, the *673legislature could specifically so provide, and we could interpret the statute that way, although we never have. That interpretation, which the dissent almost adopts, is not viable, because the only notice of appeal would be from a nonappealable judgment. The dissent apparently would hold that, although a new notice of appeal is necessary, it need not be filed within any particular time, 104 Or App at 669, although the appeal might be dismissed for want of prosecution if it is not filed within the time that this court has specified.
What we have done is what we did first in this case and in Honeyman v. Clostermann, 90 Or App 615, 753 P2d 1384, rev den 306 Or 527 (1988), that is, authorized the appellant to file a notice of appeal from the new judgment more than 30 days after it is entered. As the lead opinion acknowledges, we have also ordered that the notice of appeal from the new judgment be filed less than the 30 days permitted by statute.
I agree with the lead opinion that we had no authority to do those things. Yet, in Honeyman v. Clostermann, supra, we had ordered that the notice of appeal be filed within 14 days after the entry of the new, appealable judgment and had later extended that time limit. Ultimately, the notice of appeal was filed more than 30 days after the new judgment was entered. We held:
“We conclude, first, that failure to file a notice of appeal within 30 days after entry of the corrected judgment does not deprive us of jurisdiction. We obtained jurisdiction when defendants timely appealed from the first judgment. Our remand to the trial court with leave to enter a corrected judgment pursuant to ORS 19.033(4) did not affect our jurisdiction. See Murray Well-Drilling v. Deisch, 75 Or App 1, 9, 704 P2d 1159 (1985), rev den 300 Or 546 (1986).” 90 Or App at 619.
I do not believe that ORS 19.033(4) can reasonably be interpreted to permit this court to extend or shorten the time for filing a notice of appeal. Neither do I think that it could be reasonably interpreted to mean that, when a new, final judgment is entered and filed with this court, we could proceed to decide the merits. Although that was done in Clostermann, we assumed that a new notice of appeal was necessary but that we had discretion to fix the time for filing it. It was on that basis *674that we proceeded to decide the case on the merits. I agree that Clostermann was wrong and should be overruled.
However, Clostermann is the law until it is overruled. Neither the Supreme Court nor the legislature has done anything about it, and there is no reason why we may not adhere to it in disposing of this case. Appellant reasonably relied on our order, which clearly was supported by Clostermann. Rather than dismiss this appeal, I would prefer to hold that our decision in this case is to apply prospectively only. Because a majority of the court does not agree with that disposition, I join in the lead opinion.
Newman and Riggs, JJ., join in this opinion.