86 Or. App. 639 740 P.2d 802

Argued and submitted May 28, 1986,

affirmed in part and dismissed in part August 5, 1987

MOEN, Appellant, v. WASHINGTON COUNTY et al, Respondents. STATE OF OREGON, Respondent, v. ROBERT GEORGE BLACK, Respondent, MOEN, Intervenor-Appellant.

(82-0519C; CA A35949 (Control))

(19-850 and 19-851; CA A36066)

(Cases Consolidated)

740 P2d 802

*640Susan Elizabeth Reese, Cooperating Attorney for the ACLU, Portland, filed the brief for appellant and intervenorappellant.

Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondents Washington County; Margaret A. Post, Marlayne Claussen, Michael P. McCarty, Albert R. Musick, Gregory E. Milnes, Holger Pihl, and State of Oregon. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.

Gerald R. Pullen, Portland, argued the cause and filed the brief for respondent Michael J. McElligott.

No appearance for respondent Robert George Black.

Before Richardson, Presiding Judge, and Joseph, Chief Judge, and Newman, Judge.

JOSEPH, C. J.

*642JOSEPH, C. J.

This is a consolidated appeal in which Moen (plaintiff) seeks return of funds posted by her as bail to secure the appearance of her son, Black. He was convicted in case no. 19-850 on December 19, 1980; case no. 19-851 was dismissed on January 6, 1981. Despite the fact that plaintiff had made the deposit, the trial judge ordered the security exonerated and sent it to Black’s attorney, purportedly pursuant to ORS 135.265(2).1 Seven months later, plaintiff filed a motion for the return of the security deposit to her. The court denied her motion on the grounds that the security deposit belonged to Black, that plaintiff had no standing to object to the exoneration order because she is not a party to the action and that the criminal case was already terminated and the court did not have the authority to reopen it.2

Plaintiff then brought a civil action, purportedly under 42 USC § 1983, for return of the funds and for a declaration that the procedures used to withhold her funds are unconstitutional. The trial court dismissed her monetary claim on the ground of judicial immunity and dismissed the claim for *643declaratory relief on the ground that she could not use it as an appeal from, or a collateral attack on, a final order previously issued by the court in the criminal case.3 Plaintiff has not assigned error to either of those rulings, and she does not make any argument in her brief regarding those issues. Instead, she assigns as a sort of general error the dismissal of her complaint and argues only the merits of her case, ignoring the procedural posture of the matter altogether. Because she does not contend that any legal error occurred, the trial court’s ruling in the civil action stands.

Regarding the denial of her motion in the criminal proceeding, plaintiff argues that, under the statutory system, the security release funds were deposited only to ensure the appearance of Black and that, following his appearance, the deposit should have been returned to her.4 The trial court denied her motion in July, 1981. She did not appeal from the order denying the motion but, nearly four years later, had the trial court enter a “Final Judgment Order” on May 1,1985; it merely reiterated the denial of the motion on which an order had been entered in 1981. Plaintiffs appeal is from the 1985 judgment. The state argues that the 1985 entry is a nullity and cannot support an appeal, because the 1981 order was appealable under ORS 19.010(2) (c) as “a final order affecting a substantial right, and made in a proceeding after judgment or decree.”5 We agree.

Even though plaintiff made the motion in a criminal proceeding, it was in the nature of a civil proceeding for the *644return of court-held funds to which she had a claim. The order finally determined the matter of releasing the security deposit to plaintiff, and it affected a substantial right. It was entered after the final judgment in the criminal proceedings involving that security deposit. ORS 19.010(2)(c), therefore, applies to the 1981 order. See State v. Curran, 291 Or 119, 127, 628 P2d 1198 (1981). Plaintiff failed to appeal within 30 days. See ORS 19.026(1). She could not resurrect her right to appeal by obtaining the 1985 “judgment.” See Far West Landscaping v. Modern Merchandising, 287 Or 653, 601 P2d 1237 (1979); Junction City Water Control v. Elliott, 65 Or App 548, 672 P2d 59 (1983).

Appeal in cases nos. 19-850 and 19-851 dismissed; judgment in case no. 82-0519C affirmed.

Moen v. Washington County
86 Or. App. 639 740 P.2d 802

Case Details

Name
Moen v. Washington County
Decision Date
Aug 5, 1987
Citations

86 Or. App. 639

740 P.2d 802

Jurisdiction
Oregon

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