court lacked jurisdiction of appeal where appellant mailed respondent’s service copy of the notice of appeal to the post office box for the trial court administrator
How later courts described this case
- court lacked jurisdiction of appeal where appellant mailed respondent’s service copy of the notice of appeal to the post office box for the trial court administrator
Written by the judges who cited it.
The opinion
ROSSMAN, P. J.,
dissenting.
I dissent.
Under these, facts, I believe that appellant has met the requirements of ORS 19.028(2) and that the majority errs in dismissing his appeal. The statute requires, as pertinent:
“Service of notice of appeal on a party, court reporter or the clerk of the trial court * * * may be accomplished by first class, registered'or certified mail. The date of serving such notice shall be the date of mailingf.]”
There can be no question but that appellant timely mailed the *215 notice of appeal. Although the envelope had the wrong post office box, the post office correctly routed the copy, and it was actually received on the fifth day after mailing. What’s the problem? The service accomplished precisely what the majority says any service must accomplish: It “apprise[d] the other party of the existence and pendency of the appeal and * * * affordfed] a reasonable opportunity to appear and defend.” 104 Or App at 212.
I understand the majority’s concern that there exists the possibility that the object of service, i.e., to apprise the other party of an appeal, may not be met if an incorrect post office box is on the envelope. Indeed, given the vagaries of our postal system, we have seen that that possibility exists, even with a correct address. If and when we are presented with the situation that concerns the majority, we can address it by evaluating the nature of the error and determining whether the purpose of service has been accomplished. In the meantime, let us focus on this case. The error here was simply clerical. 1 Respondent timely received notice. No one has been hurt. I earnestly suggest that we should get on with the appeal.
The record makes it clear that the error was clerical. The notice of appeal gives the correct address for wife’s attorney. The secretary’s affidavit shows that what she did was inadvertently to type on the envelope the post office box of the Umatilla County Court Administrator and the Trial Court Reporter, both of whom were also mailed copies of the notice of appeal.