Opinion
Appeal dismissed January 22, 1929 On Motion to dismiss appeal
From Lincoln: G.F. SKIPWORTH, Judge.
For the motion Mr. Arthur Clarke. Contra, Mr. Maurice W. Seitz and Mr. C.D. Christensen.
IN BANC.
From a decree in favor of the Benton County State Bank, the West Coast Spruce Company and Alvina E. Higgs, defendants, appeal. Appeal dismissed on motion of the bank.
This cause comes up on a motion to dismiss the appeal. The suit was instituted by plaintiff, who is respondent, to foreclose a mortgage on personal property and was commenced in Lincoln County. The complaint was filed August 19, 1926. The issues were joined and on February 15, 1927, by consent of all concerned the case was transferred to Benton County. The order making the transfer reads as follows:
"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE COURT, That the above entitled cause be and is hereby transferred to the Circuit Court of the State of Oregon, for Benton County, to be tried hereafter at such time as the Judge of said Court may fix."
The cause was tried in Benton County and decree entered in the Circuit Court for that county in favor of plaintiff on May 8, 1928. Thereafter defendants and appellants West Coast Spruce Company, a corporation, and Alvina E. Higgs attempted to appeal from said decree by serving a notice of appeal upon plaintiff and filing the same in Lincoln County, Oregon, July 9, 1928. July 12, 1928, an undertaking on appeal was filed in the office of the clerk in Lincoln County. July 18th exceptions to sureties were filed in the office of the clerk in Lincoln County. July 20th a second undertaking was filed in the office of the clerk in Lincoln County. No further exceptions were made or taken to the sufficiency of the surety. August 15th a copy of the decree, notice of appeal and undertaking was filed in this court. No testimony or other documents in this cause were at that time filed in this court. The decree of the Circuit Court so filed was certified by the clerk of Lincoln County. It is entitled in the Circuit Court for Lincoln County. September 25, 1928, the abstract of record was filed. October 4, 1928, an additional abstract was filed by respondent. Appellants' brief has not yet been filed though a motion for further time is pending. This motion was not made for some time after appellants were in default. The transcript of the testimony has not yet been filed, nor has any order been made for additional time or to amend the transcript so as to include the testimony. APPEAL DISMISSED.
The order transferring the case from Lincoln County to Benton County effected a complete change of venue of said case. Thereafter the case was to be tried as though it had been commenced in Benton County.
"Upon the filing of the transcript and papers with the clerk of the court to which the cause is transferred, the change of venue shall be deemed complete, and thereafter the action shall proceed as though it had been commenced in that court." Or. L., § 50.
The text-books state the law substantially as said Section 50, Or. L.; 40 Cyc. 174-177.
"A change of venue operates to divest the court making the order of any further jurisdiction in the case, but does not affect proceedings previously taken, or prevent the court making the order from amending or correcting its record in regard to proceedings prior to the change." 40 Cyc. 176.
"The effect of a change of venue is to remove the cause absolutely from the jurisdiction of the court awarding the change. Thereafter, such court can issue no further orders, any steps taken by it in the case are of no effect." 27 R.C.L. 825, 826, § 4.
The rule seems to be universal that the change of venue deprives the court in which the cause was originally begun of all further jurisdiction. The portion of the decree directing a certified copy of the decree to be filed in Lincoln County does not change the law. That portion of the decree reads as follows:
"It is further ordered, adjudged and decreed that a copy of this decree, certified by the Clerk of the above entitled court, be filed for record in the office of the County Clerk of Lincoln County, Oregon, in the journal of the Circuit Court of the State of Oregon for Lincoln County, as and for the decree of that court."
Appellants claim that the language underscored in the excerpt from the said decree, above, constitutes a decree of the Circuit Court for Lincoln County. It was not within the power of the court to change the effect of said Section 50, Or. L. It was not the intention of the learned Circuit Court to effect any change in that statute. The personal property being situate in Lincoln County is the reason for the portion of the decree set out above reading as it does.
The attempted appeal, therefore, does not confer jurisdiction on this court. The appeal must be dismissed. It is so ordered.
APPEAL DISMISSED.