Twitchell v. Risley

Twitchell v. Risley, 107 P. 459 (Or. 1910)

Court: Oregon Supreme Court · State Highest Courts
Decided: March 1, 1910
Judges: Slater
Citations: 107 P. 45956 Or. 2261910 Ore. LEXIS 163
Disposition: Dismissed.

Cited by 15 4 descriptions by later courts

Headnotes

Appeal and Error — Decisions Review able — Consent Judgment. 1. When a judgment is entered by consent, no appeal can be taken from such decision, since the error, if any, is the error of the party, and not the court’s; the case being governed by Section 548, B. & C. Comp., providing that any party to a judgment, other than one given, by confession, etc., may appeal. Appeal and Error — Decisions Reviewable — Interlocutory Orders. 2. All errors of law during a trial are merged in the judgment from which the appeal is taken, and a party consenting to a rendition of the judgment could not reserve the right to appeal from the ruling of the court sustaining a demurrer to his further and separate answer. Appeal and Error — Jurisdiction—Consent op Parties. 3. Parties cannot by agreement confer upon the Supreme Court jurisdiction of a case, but, when lack of jurisdiction appears upon the face of the record, the court must dismiss the appeal on its own motion.

Summary

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice Slater. This action was brought by J. C. Twitchell against A. J. Risley to recover $1,050 alleged to have been paid by plaintiff to the Hartford Life Insurance Company for the use and benefit of the defendant at the latter’s special instance and request. The answer denies generally the averments of the complaint, except as thereinafter set forth. The further answer is to the effect that the money sought to be recovered was paid upon a special contract, whereby, in consideration of plaintiff paying one-half of the quarterly premiums, as they became due, upon a certain policy of insurance, and continuing to pay them during the life of the insured, he was to receive upon the death of the insured one-half of the amount collected under the policy. A demurrer was sustained to the new matter of the answer, whereupon the parties entered into the following stipulation: “That the plaintiff paid substantially as alleged in defendant A. J. Risley’s further and separate answer the sum of $1,020, to which answer a demurrer was interposed and sustained by the court, and it is hereby agreed by and between the parties, hereto that judgment may be entered against A. J. Risley in that sum. It is further understood and agreed that the defendant, A. J. Risley, is not to be prejudiced hereto to take an appeal to the Supreme Court of the State of Oregon from the ruling of the court sustaining the demurrer to his further and separate answer, it being the intention thereby to arrive at the amount, if any, due plaintiff in this action, if a trial was had on the issues as they now stand.” Based upon this agreement, a judgment was entered against defendant, who has attempted to appeal therefrom, assigning as errors the sustaining of plaintiff’s demurrer and the rendition of the judgment.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Slater

Text extracted by OCR from a scanned original; check the original for exact wording.

Mr. Justice Slater

delivered the opinion of the court.

1. It has been held by this court that no appeal lies from a judgment or decree rendered by consent of the parties: Rader v. Barr, 22 Or. 495 ( 29 Pac. 889 ); Schmidt v. Oregon Gold Mining Co., 28 Or. 9 ( 40 Pac. 406 , 1014: 52 Am. St. Rep. 759 ). In the latter case it was held that, strictly speaking, such a decree is not given by confession or for want of an answer, yet will *228 be governed by Section 548, B. & C. Comp. The purpose of .an appeal is to bring up for review an erroneous action of the trial court; but the trial court performs no judicial act when an order, decree, or judgment is entered by consent. No appeal can be taken by either party from such decision, since the error, if any, is his own, and not the court’s. 2 Pld. & Prac. 99.

2. By the stipulation in the record, the parties to this cause expressly agreed that the judgment from which the appeal is attempted to be prosecuted should be rendered; but defendant attempted to create or save a right to appeal therefrom by inserting in the stipulation a reservation to the effect that he should not be prejudiced thereby to appeal from the ruling of the court, sustaining the demurrer to his further and separate .answer. This right he never possessed. All the errors of law committed by the court during the course of a trial are merged in the judgment, from which the appeal, if any, is taken, and not from interlocutory orders. Defendant cannot appeal from the judgment because of the statute ,and he cannot waive that to which he had no right (Jones v. M. & G. R. R., 64 Ga. 446 ; McBride v. Hunter, 64 Ga. 655 ).

3. Parties cannot by agreement confer upon this court jurisdiction of the subject-matter of the cause. When a lack of jurisdiction appears upon the face of the record, it is the duty of the court to refuse to proceed further, and to dismiss the appeal on its own motion: Kesler v. Nice, 54 Or. 585 ( 104 Pac. 2 ).

The appeal therefore is dismissed.

How later courts describe this case

Explanatory parentheticals written by citing courts — 4 in all; the most informative distinct ones are shown.

(“All the errors of law committed by the court during the course of a trial are merged in the judgment, from which the appeal, if any, is taken, and not from the interlocutory orders.”)

Russell v. Sheahan, 927 P.2d 591 (Or. 1996)
(judgment or decree rendered by consent of the parties is not appealable)

Russell v. Sheahan, 927 P.2d 591 (Or. 1996)
(appellate jurisdiction cannot be conferred by consent)

State v. KP, 921 P.2d 380 (Or. 1996)

Cited by 15 cases

View all citing references →

Relies on it most ⓘ

Rauda v. Oregon Roses, Inc.986 P.2d 1157 (Or. 1999)
Basche-Sage Hdw. Co. v. De Wolfe231 P. 135 (Or. 1925)
Thompson v. State Farm Mutual Automobile Insurance25 P.3d 387 (Or. Ct. App. 2001)
Schoren v. Schoren214 P. 885 (Or. 1924)
Russell v. Sheahan927 P.2d 591 (Or. 1996)
Lee v. Lee459 P.2d 442 (Or. Ct. App. 1969)

Most recent

Thompson v. State Farm Mutual Automobile Insurance25 P.3d 387 (Or. Ct. App. 2001)
Rauda v. Oregon Roses, Inc.986 P.2d 1157 (Or. 1999)
Russell v. Sheahan927 P.2d 591 (Or. 1996)
State v. KP921 P.2d 380 (Or. 1996)
State v. K. P.921 P.2d 380 (Or. 1996)
In re the Marriage of Wrona674 P.2d 1213 (Or. Ct. App. 1984)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

Depth	Case	Cited by
	Schmidt v. Or. Gold Mining Co., 40 P. 406 (Or. 1895)	39
	Rader v. Barr, 29 P. 889 (Or. 1892)	16
	Kesler v. Nice, 104 P. 2 (Or. 1909)	12
	McBride v. Hunter, 64 Ga. 655 (1880)	6
	Jones v. Mobile & Girard R.R., 64 Ga. 446 (1879)	4

`/`	Focus the search box
`j` `k`	Next / previous result
`Enter`	Open the selected result
`x`	Add / remove the selected result from the download list
`n` `p`	Next / previous search term in a case
`c`	Copy the citation of the current case
`+` `−`	Larger / smaller reading text
`?`	Show this list