Chapter §2.46 DEFECTS THAT DO NOT DESTROY JURISDICTION

• Jurisdiction: Oregon

3. (§2.46) Defects that Do Not Destroy Jurisdiction

Oregon law characterizes several failures as nonjurisdictional defects. These examples demonstrate the courts' forgiveness.

(1) Failure to pay filing fee

The failure to pay the required filing fee with the notice of appeal is not jurisdictional, although an uncured failure is cause for dismissal. ORS 19.265; see United States Nat'l Bank v. Underwriters at Lloyd's, London, 239 Or 298, 382 P2d 851, 396 P2d 765 (1964).

(2) Failure to serve the court reporter, clerk, or administrator

The failure to serve at least one court reporter, even when all or a portion of the trial transcript is designated, is not a jurisdictional error. McQuary v. Bel Air Convalescent Home, Inc., 296 Or 653, 655-656, 678 P2d 1222 (1984) ("the procedural sins of attorneys should not be visited on their clients"); cf. ORS 19.270(2)(a) (service on parties is jurisdictional).

(3) Failure to file and serve an undertaking for costs

The failure to file an undertaking to stay enforcement of a judgment—dubbed a supersedeas undertaking—has never been a ground for appellate dismissal in Oregon. See generally ORS 19.300 (superseadeas undertaking "may" be filed), ORS 19.335 (requisites for supersedeas undertakings). However, an undertaking for costs on appeal must be served and filed within 14 days after the filing of the notice of appeal. The cost undertaking must be filed in the circuit court and a copy must be served on the adverse parties. ORS 19.300. The failure of a party to do any act required for an appeal is potential grounds for a motion to dismiss the appeal. ORS 19.270(3). When left uncured, the failure to file a cost bond could invite dismissal. See ORS 19.270(3). Historically, the court has held that this failure, although subject to discretionary dismissal, does not constitute a jurisdictional defect. Rogers v. Day, 232 Or 185, 195, 375 P2d 63 (1962); Hink v. Bowlsby, 199 Or 238, 260 P2d 1091 (1953). The court's reluctance to dismiss has been formalized in appellate rule. A motion to dismiss must attest that the moving party gave the errant party at least seven days' prior notice of the motion. ORAP 7.40(1)-(2). The errant party cannot avoid trouble simply by curing the failure. The errant party must offer a copy of the cost undertaking and show good cause for the failure to have complied with the statute. ORAP 7.40(3). The moving party may persist in seeking dismissal by showing prejudice, if any, from the failure to have filed a...