2017 ORS 19.420¹
Action by appellate court on appeal
  • review of order granting new trial or judgment notwithstanding verdict
  • reversal upon loss or destruction of reporter’s notes or audio records

(1) Upon an appeal, the court to which the appeal is made may affirm, reverse or modify the judgment or part thereof appealed from as to any or all of the parties joining in the appeal, and may include in such decision any or all of the parties not joining in the appeal, except a codefendant of the appellant against whom a several judgment might have been given in the court below; and may, if necessary and proper, order a new trial.

(2) Where in the trial court a motion for judgment notwithstanding the verdict and a motion for a new trial were made in the alternative, and an appeal is taken from a judgment notwithstanding the verdict or an order granting a new trial, the court to which the appeal is made may consider the correctness of the ruling of the trial court on either or both motions if such ruling is assigned as erroneous in the brief of any party affected by the appeal, without the necessity of a cross-appeal.

(3) Whenever it appears that an appeal cannot be prosecuted, by reason of the loss or destruction, through no fault of the appellant, of the reporter’s notes or audio records, or of the exhibits or other matter necessary to the prosecution of the appeal, the judgment appealed from may be reversed and a new trial ordered as justice may require. [Formerly 19.130]

(formerly 19.130)

Notes of Decisions

A respondent seeking to sustain the judg­ment is not re­quired to cross-ap­peal from the judg­ment in order to preserve for the appellate court’s considera­tion alleged errors by the trial court, but he must unequivocally make the alleged error an issue on ap­peal and clearly contend that if the judg­ment cannot be sustained he is entitled to a new trial or other relief because of the alleged error of the trial court. Artman v. Ray, 263 Or 529, 501 P2d 63 (1972)

When a tort claim against defendant rests only on the doctrine of respondeat superior and defendant’s agent is found not liable at first, the case should be remanded for entry of judg­ment in favor of defendant. Sisk v. McPartland, 267 Or 116, 515 P2d 179 (1973)

To obtain reversal due to lack of notes, records or exhibits, appellant must show that appellant made every reasonable effort to secure missing item and must make at least prima facie showing of error, of unfairness at trial or that there has been miscarriage of justice. Ethyl Corp. v. Jalbert, 270 Or 651, 529 P2d 368 (1974); Smith v. Custom Micro, Inc., 311 Or 375, 811 P2d 1371 (1991); State v. Dam, 116 Or App 210, 840 P2d 1317 (1992); State ex rel Juvenile Dept. v. Dahl, 158 Or App 479, 974 P2d 783 (1999)

Where defendant ap­peals con­vic­­tion for driving under influence of intoxicants and assigns error to trial court’s admission of state­ments made to police, failure to take judicial notice of certain facts and instruc­tion to jury, trial court did not err in admitting state­ments that defendant had driven earlier that evening, committed harmless error in failure to take notice that Eskalith comes in various size capsules and since record relating to jury instruc­tion was not preserved, Appeals Court unable to review whether trial court sufficiently apprised jury of grounds for excep­tion. State v. Kennedy, 95 Or App 663, 771 P2d 281 (1989)

Evidence supporting jury decision against judg­ment n.o.v. was not limited to plaintiff’s case in chief. King v. All Pro Services, Inc., 120 Or App 479, 852 P2d 943 (1993)

Chapter 19

Notes of Decisions

This chapter does not apply to workers’ compensa­tion pro­ceed­ings since it governs appellate review of lower court decisions and not decisions of administrative tribunals. SAIF v. Maddox, 60 Or App 507, 655 P2d 214 (1982), aff’d 295 Or 448, 667 P2d 529 (1983)

1 Legislative Counsel Committee, CHAPTER 19—Appeals, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors019.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 19, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano019.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.