Moreover, it is long settled that parties may not create appellate jurisdiction by stipulation. See, e.g. , Brodine v. Employment Exchange, Inc. , 33 Or. App. 237, 240, 576 P.2d 384, rev. den. , 283 Or. 1, 580 P.2d 1030 (1978). Various statutes govern how a party may initiate an appeal and proscribe the requirements for perfecting the appeal.
The arbitration at issue in the present case occurred before the Oregon Uniform Arbitration Act went into effect.But see Brodine v. Employment Exchange, Inc., 33 Or App 237, 240, 576 P2d 384 (1978) (jurisdiction in the appellate court cannot be conferred by stipulation of parties). Husband objected to the entry of the arbitration award as a general judgment and asserted that he was entitled to trial de novo pursuant to ORS 36.425. The trial court ultimately agreed with wife's position and entered a general judgment predicated on the arbitration award.
See Ackerly v. Mt. Hood Comm. College, 51 Or. App. 801, 804 n 1, 627 P.2d 487 (1981). It is well settled that jurisdiction may not be conferred by stipulation or consent of the parties. Johnson v. AssuredEmployment, Inc., 277 Or. 11, 14, 558 P.2d 1228 (1977); Brodine v. Employment Exchange Inc., 33 Or. App. 237, 240, 576 P.2d 384, rev den 283 Or. 1 (1978). For a controversy to be justiciable, it " 'must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue.' "
It is clear, however, that an agreement that a trial court order will be an appealable order does not give this court jurisdiction. McEwen et ux v. McEwen et al, 203 Or. 460, 470, 280 P.2d 402 (1955); Brodine v. Employment Exchange, Inc., 33 Or. App. 237, 238, rev den 283 Or. 1 (1978). The difficulty now arises because there has been no final determination made in this action with respect to all defendants. In particular, the amended judgment order does not expressly determine that there is no just reason for delay in entering judgment against defendant Sommerholder.
Despite some confusion in the earlier cases of Transco Northwest v. Allied Equip., 275 Or. 675, 552 P.2d 824 (1976), and Wagner v. Columbia Hospital Dist., 259 Or. 15, 485 P.2d 421 (1971), the most recent Supreme Court case of Jackson v. Penny Duquette Knits, 276 Or. 465, 555 P.2d 201 (1976), holds that an abatement order entered pursuant to ORS 33.240 is not final and thus not appealable. See also, Brodine v. Employment Exchange, Inc., 33 Or. App. 237, 576 P.2d 384, rev den (1978); compare Dept. of Human Res. v. Williams, 12 Or. App. 133, 505 P.2d 936 (1973). The first question is whether the Jackson rule, articulated in ORS 33.240 context, is controlling in this case which arises under ORS 33.230.