Miller v. GRANTS PASS IRR. DIST.

622 P.2d 729 (1981)

290 Or. 487

Robert MILLER, Petitioner, v. GRANTS PASS IRRIGATION DISTRICT, a Quasi-Municipal Corporation, and the State of Oregon, Respondents. Lisa Miller, a Minor, by and through Her Guardian Ad Litem, Robert Miller, Petitioner, v. Grants Pass Irrigation District, a Quasi-Municipal Corporation, and the State of Oregon, Respondents.

No. CA 14444; SC 27051.

Supreme Court of Oregon, In Banc.

Argued and Submitted January 6, 1981.

Decided February 4, 1981.

*730 James C. Waggoner, Portland, argued the cause for petitioners. With him on the briefs were Gary M. Georgeff, Lloyd B. Ericsson, and Martin, Bischoff, Templeton, Biggs & Ericsson, Portland.

John Eads, Medford, argued the cause for respondent Grants Pass Irr. Dist. With him on the brief were William V. Deatherage, of Frohnmayer & Deatherage, Medford.

William F. Gary, Deputy Sol. Gen., Salem, argued the cause for respondent State of Oregon. With him on the brief were James A. Redden, Atty. Gen., and Richard L. Caswell, Asst. Atty. Gen., Salem.

MEMORANDUM OPINION.

The Court of Appeals published an opinion in support of its decision in favor of defendants. Miller v. Grants Pass Irrigation, 45 Or. App. 823, 609 P.2d 859 (1980). Plaintiffs petitioned for review, ORS 2.520, and we allowed the petition, 290 Or. 171 (1980).

On the morning of oral argument on January 6, 1981, defendant State of Oregon filed a written motion for an order "dismissing the appeal" on the ground that the plaintiffs had appealed from a non-appealable order of the circuit court. This motion was made pursuant to Rule 9.10, Rules of Appellate Procedure, which provides in pertinent part:

"However, a party may challenge the jurisdiction of the appellate court under Oregon statute or otherwise by motion made at any time during the appellate process."

At oral argument, defendant Grants Pass Irrigation District orally made a like motion.

It appeared from the record that the plaintiffs had attempted to appeal to the Court of Appeals from an order granting a motion for summary judgment rather than from a judgment. Defendants cited Cenci v. The Ellison Company, 289 Or. 603, 617 P.2d 254 (1980), and Stahl v. Krasowski, 281 Or. 33, 573 P.2d 309 (1978), in support of their motions.

We allowed plaintiffs an opportunity to brief the question of jurisdiction. They have informed us that they agree that the order allowing the motion for summary judgment was not an appealable order and concede that "the appeal should be dismissed, [and] the opinion of the Court of Appeals vacated."

The Court of Appeals has jurisdiction of all appeals, ORS 2.516. Since all parties and this court are agreed that plaintiffs had attempted to appeal from a non-appealable order, it follows that the Court of Appeals had no jurisdiction to decide the case. Ragnone v. Portland School District No. 1J, 289 Or. 339, 613 P.2d 1052 (1980). There is nothing, therefore, upon which we can exercise our power to review decisions of the Court of Appeals under ORS 2.520, and we express no opinion concerning the merits.

We order that this matter be remanded to the Court of Appeals to vacate its decision and to dismiss the appeal as to each plaintiff.[1]

NOTES

[1] On the record made in this case, we have had no occasion to decide whether jurisdiction of this court is assailable under Rule 9.10, Rules of Appellate Procedure.