These consolidated appeals both involve a previous appeal to the Circuit Court for Klamath County from a judgment of the District Court of that county against plaintiffs and in favor of defendants Dickson in the sum of $1,365.
On September 20, 1973, a transcript of the previous judgment of the district court was filed and docketed in the judgment docket of the circuit court under the provisions of ORS 46.274. Plaintiffs filed in the district court a motion to set aside the docketing of that judgment, which was denied. Plaintiffs then filed in the circuit court a petition for review in which it was alleged that "the said District Court has no jurisdiction in the case, and the case having been dismissed by the Circuit Court, there is no authority for perpetuation of the judgment * * *."
A motion by defendants to quash that petition for review was granted. On the same date the circuit court entered a further and separate judgment in the sum of $1,365 against both plaintiffs and the sureties, after reciting that the previous appeal had been dismissed.
Plaintiffs appeal from that judgment by the circuit court. Plaintiffs also appeal from the order of the circuit court in the separate proceedings arising from plaintiffs' petition for review, in which that court refused to set aside the docketing of the judgment of the district court.
Plaintiffs contend that by the terms of ORS 53.110 the entry by the circuit court of judgment against both the appellants and the sureties on their undertaking on appeal is limited to cases in which appeals from the district court to the circuit court have been dismissed as "not properly taken and perfected." Thus, it is contended that because the appeal to the circuit court in this case was properly taken and perfected and was subsequently dismissed
It is also contended by plaintiffs that upon the appeal to the circuit court of the judgment of the district court and the perfection of that appeal by filing with the clerk of the circuit court a transcript of the proceedings in the district court, the action was then to "be deemed pending and for trial [in the circuit court] as if originally commenced in such court," with jurisdiction to "try it anew," as provided by ORS 53.090, and that upon the dismissal of such a previously perfected appeal the action itself was terminated, including any power of the circuit court to enter judgment under ORS 53.110. For the same reasons, plaintiffs contend that the previous judgment of the district court was nullified and could no longer be docketed in the circuit court.
ORS 53.110 provides as follows:
The history of this statute and its predecessor, as construed and applied by this court, is of interest in arriving at a proper application of ORS 53.110 to the facts of this case.
In Simpson v. Prather, supra, an appeal from a justice court to a circuit court was dismissed after six months of inaction by the appellant upon the ground that it had been "abandoned," following which judgment was entered by the circuit court against the defendant and the sureties on their undertaking on appeal. This court affirmed the entry of that judgment over the protest by one of the sureties, saying (5 Or. at 88) that:
At that time what is now ORS 53.110 had not been adopted in its present form. It was expressly provided by the previous statute, however, that "if the appeal be abandoned as provided in subdivision 3 of this section" (i.e., by failure to file a transcript of the proceedings in the justice court within the time required by statute), the original judgment or decree could be enforced "against the sureties in the undertaking for a stay of proceedings, as if they were parties to such judgment or decree." Deady and Lane, General Laws of Oregon 1843-72, ch. 6, § 531(4). No reference to that statute was made in Simpson v. Prather, supra. Neither does it appear from the opinion in that case whether or not the appeal from the justice court had been "abandoned" by the failure to file in the circuit court a transcript of the proceedings in the justice court.
In Nurse v. Justus, 6 Or. 75 (1876), although under different facts, this court considered the provisions of the statutes then in effect for appeals from justice courts to circuit courts, including other provisions similar to those of the present ORS 53.090 (cf. Deady and Lane, General Laws of Oregon 1843-72, ch. 6, § 536(3)), and said (6 Or. at 76) that such an appeal
Four years later, in State of Oregon v. McKinnon, 8 Or. 485 (1880), this court again considered the provisions of the same statutes and held that when an attempted appeal is defective, the appellate court has no other jurisdiction over the case than to dismiss it without affirming the judgment appealed from. In so holding this court said (8 Or. at 486):
In Whipple v. S.P. Co., 34 Or. 370, 55 P. 975 (1899), this court again held, and again under different facts, that when an appeal from a justice court was dismissed the only judgment that could be rendered was to dismiss the appeal, citing State of Oregon v. McKinnon, supra, among other cases holding to the same effect. Shortly after that decision, however, what is now ORS 53.110 was enacted. Oregon Laws 1899, § 49, p. 118.
In Russell v. Smith, 96 Or. 629, 630, 190 P. 715 (1920), it was held under that statute that if such an appeal is dismissed for failure to file the transcript within the specified time, "upon such dismissal the judgment may be enforced by the appellate court against the appellant and his sureties."
In Currier v. Anderson, 136 Or. 440, 299 P. 704 (1931), another case in which an appeal from a justice court had also not been properly perfected by the timely filing of a transcript, this court pointed out that the statute had been amended since its earlier decision in Whipple v. S.P. Co., supra, and said (136 Or. at 442-444, 299 P. at 705) that:
This case, however, is not a case in which the appeal from the district court to the circuit court was "not properly
Thus, the question to be decided is whether, in a case in which an appeal from a district court to a circuit court has been properly taken and perfected, but is subsequently dismissed for want of prosecution, ORS 53.110 authorizes the entry of judgment against both the appellant and his surety. That question has not been previously presented for decision by this court.
In Currier v. Anderson, supra, it was held that the authority of the circuit court to enter judgment upon the dismissal of an appeal from a justice court (or from a district court) "depends upon the statute." This is particularly true when entry of judgment is sought against a surety on an undertaking for appeal.
The first sentence of ORS 53.110 provides that such an appeal may be dismissed "if it is not properly taken and perfected." This statutory authority to dismiss, of course, is not exclusive, because the courts have the inherent power to dismiss cases for want of prosecution and that power is not based upon any statute. Longyear, Admx. v. Edwards, 217 Or. 314, 318, 342 P.2d 762 (1959), and Reed v. First Nat. Bank of Gardiner, 194 Or. 45, 55, 241 P.2d 109 (1952).
Plaintiffs contend that the remaining provisions of ORS 53.110, including those authorizing the circuit court to enter judgment against the appellant and his surety, are limited to cases in which appeals have not been "properly taken and perfected." We disagree.
It is one of the "fundamental canons" of statutory construction that a statute shall, if possible, be construed so as to avoid absurd or unreasonable results. As stated in Pacific P. & L. v. Tax Com., 249 Or. 103, 110, 437 P.2d 473, 476 (1968):
Many appeals are abandoned, both before and after the filing of a transcript. To hold, as defendants must necessarily contend, that in the event that an appeal is dismissed because it was abandoned before the filing of a transcript of the proceedings of the lower court a judgment must be entered by the circuit court against both the appellant and his sureties, but that if the appeal is dismissed because it was abandoned after the filing of such a transcript judgment cannot be entered by the circuit court against either the appellant or his sureties would, in our view, be an absurd and unreasonable result and one not intended by the legislature.
We do not believe that the legislature intended to limit the power of the court to enter such a judgment to only those cases in which appeals are dismissed as "not properly taken and perfected." If the legislature had so intended it could easily have said "when such an appeal is dismissed," or "when an appeal is dismissed for that reason," the circuit court must enter such a judgment. Instead, the legislature said that "when an appeal is dismissed," and without specifying the reasons for dismissal, the circuit court must enter such a judgment.
It also appears that the intent of the legislature in 1899 in the enactment of what
For these reasons, we construe ORS 53.110 as requiring the circuit court to enter such a judgment in cases in which appeals from justice courts or district courts are dismissed for want of prosecution after the filing of an undertaking on the appeal, as in this case.
Having thus held that the circuit court properly entered judgment against plaintiffs and their sureties, it becomes unnecessary to decide whether defendant could also cause the original judgment of the district court to be docketed in the circuit court. Accordingly, the appeal from the order quashing plaintiffs' writ of review is dismissed because the question presented for decision in that appeal has been rendered purely academic, if not moot, by the affirmance of the judgment of the circuit court on the appeal in the principal case. Cf. Berliner v. Roberts, 226 Or. 369, 360 P.2d 539 (1961); and Oregon-Wash. Co. v. School Dist. No. 25, 89 Or. 7, 10, 173 P. 261 (1918).