dissenting.
I agree in substance with what the majority says that ORS 19.160 means. The text of the statute requires that the *803specified damages for delay must be given if a judgment1 is affirmed on appeal and that judgment is for money or personal property or the value thereof unless it “appears evident” to the appellate court that there was probable cause for taking the appeal. I believe that the appellate court may look only to the record on appeal and the briefs and argument made in support of the claims of error to determine if there was probable cause for the appeal.
P agree with the majority as to the meaning of the term “probable cause for taking the appeal” insofar as the majority opinion draws upon State v. Iverson, 76 Idaho 117, 278 P2d 205 (1954).
Whether or not it was an accurate perception, many in the trial bar did believe that this court’s reluctance, when this was the court of direct appeals, to give judgment under ORS 19.160 was because the statute was perceived to be one-sided. Many of the cases which came to this court were appeals taken by unsuccessful plaintiffs in actions for damages for personal injuries. The only money judgment against such an appellant was for costs and disbursements, usually a comparatively small sum and, therefore, an additional 10% was not a deterrent to appealing the case. In that kind of case, however, another deterrent to appealing without probable cause existed in a very real sense. The plaintiff usually did not have the means to pay for the necessary transcript or for the fee of an attorney on appeal. If the trial lawyer had the case on a contingent fee basis, the lawyer was not interested in investing further time in an appeal for which he could discern no probable cause. In order to prevent the defendant from enforcing the judgment pending appeal, the plaintiff would have to obtain a supersedeas bond, another not inexpensive item. It is clear to me that the statute was not one-sided.
Even less so is it one-sided at the present time. A judgment against a plaintiff for costs and disbursements is a judgment for money, and increasingly in recent times judgments against plaintiffs include substantial sums for defendants’ attorney fees, either in addition to costs and disbursements or as a part thereof. The addition of 10% to a *804defendant’s judgment may well be as sizeable as the judgment for damages for delay as was allowed by the Court of Appeals in the case at bar. Even when the judgment in the trial court for the defendant for costs and disbursements is little more than nominal, the temptation to the plaintiff to appeal without probable cause is not particularly inviting. The cost in attorney fees and for a transcript must be laid out, ordinarily in an attempt to gain a new trial on a cause which the plaintiff has already lost once.
My reason for refusing to join the majority, despite my belief that the majority substantially correctly construes the statute, is a regard for the doctrine of stare decisis. As Justice Campbell has pointed out, this court has from an early time engrafted upon the statute a judicial gloss which makes application of the statute depend upon the good, or bad, faith of the appellant or whether the appeal might have been taken for the purpose of delay. That gloss was erroneously applied, but it is there. Had the legislature been not in accord with that treatment of its command, it could have made that known by appropriate legislative action. As I have written on an earlier occasion, when the court errs in construing a statute, as distinguished from a constitutional provision or the common law, correction should be made by the legislative department of government. See my separate opinion in State v. Newton, 291 Or 788, 815, 636 P2d 393, 410 (1981).
ORS 19.160 speaks to both judgments and decrees, but ORCP 67A. provides that “judgment” includes a decree.