Summary
The court dismissed an appeal from a judgment awarding the plaintiff $265.10 for damages arising from a highway collision. It held that the trial judge had a mandatory duty to issue a written, signed order of appeal, and that no valid order had been obtained. The absence of an appeal order deprived the appellate court of jurisdiction, which could not be waived by consent.
Topics
Practice areas
Questions Presented
- Whether the Court of Appeal had jurisdiction to entertain the appeal when the trial judge had not entered and signed a written order of appeal.
- Whether the absence of a valid order of appeal could be waived or cured by the parties' consent or by an oral directive from the trial judge.
Holdings
- An appeal cannot be maintained where the trial judge failed to grant a written, dated, and signed order of appeal as required by law.
- The requirement of an order of appeal is jurisdictional and cannot be waived or dispensed with, even by consent of the appellee.
Key quotations
“The court is without jurisdiction to entertain an appeal without an order of appeal from the trial court, which cannot be waived or dispensed with even by consent of the appellee.” (472)
“The court will take notice of the absence of an order of appeal, and, on its own motion, dismiss the appeal.” (472)
Factual background
Plaintiff's truck encountered defendant's truck parked at night on the wrong side of a public highway, with its lights burning brightly and without flares. According to plaintiff, the truck driver attempted to avoid what appeared to be an oncoming vehicle, drove into the south ditch, and struck a bridge, causing damage. The trial court awarded plaintiff $265.10.
Procedural history
Plaintiff obtained a $265.10 judgment against defendant after a trial in the district court. Defendant appealed, but the trial judge did not enter or sign an order of appeal; instead, the record contained an unsigned letter and a typewritten copy of a purported order. The Court of Appeal dismissed the appeal on its own motion for lack of appellate jurisdiction.