dissenting.
I dissent. This court’s jurisdiction is not capricious; it cannot be lost at the drop of a hat. Once it vests, it can only be dislodged by the clear statutory direction of ORS 19.033(6). Moreover, plaintiffs find themselves in their present position because they relied on our specific instructions to them. Under the circumstances, I am disturbed that the lead opinion leaves them hanging in the wind.
According to the lead opinion, an appellate court has jurisdiction over a cause when a notice of appeal is filed. However, under ORS 19.010, an appeal may be taken only from a final judgment. 104 Or App at 668. Citing Ellis v. Roberts, 302 Or 6, 725 P2d 886 (1986), it reasons that a premature notice of appeal “deprives the trial court of jurisdiction to proceed, yet * * * does not confer jurisdiction on the appellate court to decide the appeal.”1 104 Or App at 670. It concludes that ORS 19.033(4) does not create jurisdiction in an appellate court where none previously existed and, therefore, plaintiffs’ failure here to file an amended appeal within *67530 days after entry of the corrected judgment deprives us of jurisdiction.
The lead opinion’s conclusion that an appeal from a nonfinal judgment deprives the appellate court of jurisdiction is based on Supreme Court decisions. 104 Or App at 668, n 3. However, the cases it relies on predate the enactment of ORS 19.033(4) and do not explain the effect of the passage of that statute on the jurisdiction of the appellate court. The lead opinion errs in its belief that the “act of giving leave under ORS 19.033(4) does not have any effect on the jurisdiction of the appellate court if jurisdiction to decide the case did not previously exist.”2 104 Or App at 671.
Historically, when a notice of appeal was filed from a nonfinal judgment, the appeal was dismissed. ORS 19.033(4) was enacted to avoid dismissal when the appellate court could determine that there were no substantive issues remaining for determination in the trial court but the judgment did not state that finality. See, e.g., City of Portland v. Carriage Inn, 296 Or 191, 673 P2d 531 (1983). ORS 19.033(4) did not change the requirement of prior case law that a decision on the merits of a case depends on a final judgment, but it did provide a mechanism whereby the appellate court, without relinquishing jurisdiction, could receive a final judgment so that it could make a decision.
Legislation is to be construed so that it will carry out its purpose and, if its purpose is unclear from the language of the section, courts are required to give a meaning that comports with common sense and with the statutory scheme as a whole. Didier v. S.I.A.C., 243 Or 460, 465, 414 P2d 325 (1966). A legislative act is not to be deemed meaningless. Thompson v. IDS Life Ins. Co., 274 Or 649, 656, 549 P2d 510 (1976).
It would be meaningless for the legislature to have required a party to file a new appeal from a judgment entered under ORS 19.033(4). That would have not achieved any result not available by dismissing the case to be followed by *676entry of an appealable judgment and a new notice of appeal. That the legislature intended a different result is apparent from legislative hearings on the amendment, during which counsel to the Senate Judiciary Committee explained that ORS 19.033(4)
“[ajllows the trial court to cure certain problems of a judgment that has been appealed without affecting the appellate jurisdiction[.]” Minutes, Senate Judiciary Committee, June 12, 1985, p. 19. (Emphasis supplied.)
There is no need for ORS 19.033(4) to create appellate jurisdiction, because it exists pursuant to ORS 19.033(1) which provides that, once a notice of appeal has been filed, the appellate court has jurisdiction “of the cause.” While the jurisdiction of the cause is in the appellate court, the trial court’s authority is limited. It retains jurisdiction over attorney fees, costs and disbursements, ORS 19.033(1), and may enter an order under ORCP 71. ORS 19.033(5). It may also enter an appealable judgment with leave of the appellate court pursuant to ORS 19.033(4). Appellate jurisdiction over the cause does not end until “a copy of the appellate judgment is mailed * * *.” ORS 19.033(6). In short, ORS 19.033 in its entirety provides that, once the notice of appeal has been filed, the appellate court has jurisdiction and the trial court does not. See Murray Well-Drilling v. Deisch, 75 Or App 1, 9, 704 P2d 1159 (1985), rev den 300 Or 546 (1986).
The lead opinion is wrong in stating that “ORS 19.010 means that an appeal can be taken only from a final judgment.” 104 Or App 668. If a notice of appeal “has been served and filed as provided in ORS 19.023, 19.026 and 19.029,” even if the notice of appeal is from a nonappealable order, the appellate court still has jurisdiction over the cause. ORS 19.033(1). ORS 19.010 is a jurisdictional statute only in the sense that it defines what we may review:
“A judgment or decree may be reviewed on appeal as prescribed in ORS 19.005 to 19.026 and 19.029 to 19.200.” (Emphasis supplied.)
In a footnote, the author of the lead opinion recognized the distinction between appealability and reviewability in Murray Well-Drilling v. Deisch, supra, 75 Or App at 5, n 4:
“To say that an appeal is dismissed ‘for lack of jurisdiction’ when the defect is a want of an appealable judgment or *677order may be inaccurate usage. ORS 19.033(1) * * * and ORS 19.033(2) * * * emphasize that what is considered ‘jurisdictional’ are the requirements of ORS 19.023, 19.026 and 19.029. One searches those statutes in vain for the requirement that an appeal be taken from an appealable judgment or order.
“The requirement of an appealable judgment or order is contained in ORS 19.010. That statute does not use the word ‘jurisdiction’ but merely defines those judgments, decrees and orders that are reviewable on appeal. Arguably, then, when this Court dismisses an appeal because we determine that the document being appealed is not reviewable under ORS 19.010, the defect is not ‘jurisdictional, ’ as that term is used in ORS 19.033. The implication is that, once a notice of appeal has been filed within the time and in the manner prescribed in ORS 19.023,19.026 and 19.029, under ORS 19.033(1), and during the pendency of the appeal, the appellate court has ‘jurisdiction’ and the trial court does not, regardless of whether the document designated as the subject of the appeal ultimately is determined not to be appealable.” (Emphasis supplied.)
We have previously determined in Honeyman v. Clostermann, 90 Or App 615, 619, 753 P2d 1384 (1988), that
“failure to file a notice of appeal within 30 days after entry of the corrected judgment does not deprive [this court] 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, [supra].”
The lead opinion has provided no convincing grounds for overruling Honeyman v. Clostermann, supra. At best, it has provided an alternative construction of ORS 19.033. In my view, that construction is less persuasive than that in Honeyman v. Clostermann, supra and Murray Well-Drilling v. Deisch, supra. Moreover, it leads to absurd and inequitable results, as evidenced by the case at bar. Accordingly, I dissent.
Deits, J., joins in this dissent.In Ellis v. Roberts, supra, the Supreme Court was confronted with a notice of appeal filed after the judgment disposing of the case had been signed but before it had been entered in the register. The comí; noted the anomalous situation that a prematurely filed notice of appeal creates, by depriving the trial court of the jurisdiction to proceed to enter an appealable judgment. However, whether the notice of appeal is premature or is from a nonappealable judgment, neither brings before the court issues which can be decided. See, infra. The lack of reviewability does not affect the appellate court’s jurisdiction over the cause, even if the exercise of that jurisdiction is a dismissal of the appeal.
Jurisdiction is actually a broad grant of power with several aspects:
“A court’s jurisdiction encompasses three types of jurisdiction — (1) jurisdiction of the subject matter, (2) jurisdiction of the parties, and (3) jurisdiction or power to render the particular judgment.” Landis v. City of Roseburg, 243 Or 44, 49, 411 P2d 282 (1966).