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Stroh v. Saif

Oregon Supreme Court
Jan 12, 1972
261 Or. 117 (Or. 1972)

Summary

In Stroh v. SAIF, 261 Or. 117, 492 P.2d 472 (1972), we held that a copy of a notice of appeal by ordinary mail rather than by registered or certified mail as required by statute still satisfies the notice requirement where notice is actually received within the 30-day time limit of ORS 656.295 (8).

Summary of this case from Zurich Ins. Co. v. Diversified Risk Management

Opinion

Argued December 6, 1971

Reversed and remanded January 12, 1972

On Review from the Court of Appeals.

REVERSED AND REMANDED.

Larry O. Gildea, Eugene, argued the cause for petitioner. On the briefs were Gildea, Speer Allison, Eugene.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Jacob B. Tanzer, Solicitor General, Salem.

Before O'CONNELL, Chief Justice, and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, Justices.


This is a petition for review of the judgment of the Court of Appeals which approved the judgment of the trial court. 6 Or. App. 628, 488 P.2d 844 (1971).

The only question presented on appeal and review is whether the circuit court acquires jurisdiction if the notice required by ORS 656.298 (3) is sent and received by ordinary mail rather than by registered or certified mail. ORS 656.298 (3) provides as follows:

"(3) The judicial review shall be commenced by serving, by registered or certified mail, a copy of a notice of appeal on the board and on the other parties who appeared in the review proceedings, and by filing with the clerk of the circuit court the original notice of appeal with proof of service indorsed thereon. The notice of appeal shall state:

"(a) The name of the person appealing and of all other parties.

"(b) The date the order appealed from was filed.

"(c) A statement that the order is being appealed to the circuit court.

"(d) A brief statement of the relief requested and the reasons the relief should be granted."

On November 6, 1970 claimant filed his request for judicial review and sent by regular mail a copy of notice of appeal to the board and to the other parties who appeared in the review proceedings. It is conceded that the addressees received copies of the notice of appeal.

The Court of Appeals, relying upon Demitro v. State Industrial Accident Comm., 110 Or. 110, 223 P. 238 (1924) and McCain v. State Tax Comm., 227 Or. 486, 360 P.2d 778, 363 P.2d 775 (1961) (which the Court of Appeals characterized as "harsh"), held that the circuit court does not acquire jurisdiction unless copies of the notice of appeal are sent by certified or registered mail.

It is clear that Demitro and McCain compelled the conclusion reached by the Court of Appeals. We are now of the opinion, however, that those cases incorrectly interpreted the statutes comparable to ORS 656.298 (3) specifying that service of notice of appeal is to be effected by certified or registered mail.

In the absence of statute the deposit of a notification in the mail is not effective as notice unless the notification is received. However, statutes commonly provide for notification by mail and where this is the case the deposit of the notification in the mails satisfies the requirement of notice, even though the notification is not received.

1 Merrill on Notice § 627, p. 707 (1952).

1 Merrill on Notice § 633, p. 716 (1952). See for example, Meierdierck v. Miller, 394 Pa. 484, 147 A.2d 406, 407 (1959).

We assume that ORS 656.298 (3) was enacted to give this latter effect to a notification deposited in the mails. The effect of the statute is to make a notification by registered or certified mail effective even though it is not received. But it does not follow that the failure to certify or register the notification renders it ineffective where it is actually received by the noticee. If the statute is not complied with, the rule is the same as it is where there is no statute providing for notice by mail. As we noted above, in such case, although the deposit of the notification in the mail is not effective in itself, the receipt of the notification constitutes legal notice.

See 1 Merrill on Notice § 636, p. 723, noting that if a statute calls for notification by registered mail, notification is ineffective "unless it actually is received." See also, Fleisher Engineering Construction Co. v. United States, 311 U.S. 15, 61 S Ct 81, 85 L Ed 12 (1940); United States v. Kagan, 129 F. Supp. 331 (D Mass. 1955); Chirico v. Kings County Sav. Bank et al., 168 Misc. 207, 4 NYS2d 723 (1938); Volandri v. Taylor, 124 Cal.App. 356, 12 P.2d 462 (1932).

In the present case if the interested parties had not actually received the mailed notification, plaintiff's failure to send by certified or registered mail would have conclusively established that legal notice had not been given. Proof that plaintiff had mailed the notification would be irrelevant. But the evidence establishes that the notification sent by plaintiff was actually received. Under these circumstances the notice requirement was satisfied.

Demitro v. State Industrial Accident Comm, supra, and McCain v. State Tax Comm, supra, are overruled.

The judgment of the trial court is reversed and the cause remanded for further proceedings.


Summaries of

Stroh v. Saif

Oregon Supreme Court
Jan 12, 1972
261 Or. 117 (Or. 1972)

In Stroh v. SAIF, 261 Or. 117, 492 P.2d 472 (1972), we held that a copy of a notice of appeal by ordinary mail rather than by registered or certified mail as required by statute still satisfies the notice requirement where notice is actually received within the 30-day time limit of ORS 656.295 (8).

Summary of this case from Zurich Ins. Co. v. Diversified Risk Management

In Stroh v. SAIF, 261 Or. 117, 492 P.2d 471 (1972), involving a similar requirement that a notice be sent by certified or registered mail, we held that actual notice is the equivalent of notice by certified mail.

Summary of this case from Brown v. Portland School Dist. #1

involving notice of appeal in workers' compensation case

Summary of this case from Brown v. Portland School Dist. #1

In Stroh v. SAIF, 261 Or. 117, 118, 492 P.2d 472 (1972), the court defined the question before it as being "whether the circuit court acquires jurisdiction if the notice required by ORS 656.298(3) is sent and received by ordinary mail rather than by registered or certified mail."

Summary of this case from Choban v. Washington County

In Stroh v. SAIF, 261 Or. 117, 492 P.2d 472 (1972), the Supreme Court held that a requirement that notice be sent by registered or certified mail was satisfied in a situation where the notice was sent by regular mail, but it was established that notice had been actually received.

Summary of this case from Schneider v. Emanuel Hospital

In Stroh that portion of ORS 656.298(3) which requires notice of appeal to be served by registered or certified mail was in issue.

Summary of this case from Stevens v. Saif

In Stroh our Supreme Court held that a workmen's compensation claimant's notice of claim sent by ordinary mail rather than registered mail as required by statute was sufficient when the evidence established that the notice was actually received as in this case.

Summary of this case from Croft v. Gulf & Western Industries, Inc.

In Stroh our Supreme Court held that where a notice of appeal required by ORS 656.298 (3) to initiate judicial review on workmen's compensation cases is actually received, it is sufficient if the notice was sent by ordinary mail and not dispatched by registered or certified mail as specified by statute.

Summary of this case from Wallis v. Crook County School Dist

In Stroh, the court ruled that, "[i]n the absence of statute the deposit of a notification in the mail is not effective as notice unless the notification is received.

Summary of this case from Ecobank, LLC v. Lane Cnty. Assessor
Case details for

Stroh v. Saif

Case Details

Full title:STROH, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Respondent

Court:Oregon Supreme Court

Date published: Jan 12, 1972

Citations

261 Or. 117 (Or. 1972)
492 P.2d 472

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