Note: Site still under construction – April, 2013.
Query: Does Filing an Appeal Stay an Already Active Garnishment?
Answer: The answer in Oregon (unlike the federal courts) is an unqualified “Yes.”
Surprisingly, reviewing the history of ORS 19.335 or ORCP 72A, the two major stay-pending-appeal statutes, leaves unanswered whether appellants can file an appeal to blunt an attempted garnishment.
As well as ORS 19.335 (automatic stays), ORCP 72A does incorporate ORS 19.340 & ORS 19.350 (discretionary stays). Another non-referenced, but essential statute: ORS 19.300(2).
”ORS 19.300(2): A supersedeas undertaking may be served and filed by an appellant at any time while a case is pending on appeal.” (emphisis mine)
A plain reading of the text offers no insights into the impact of garnishments, so shelter must be sought in legislative history.
Again, the controlling subsection:
“(2) A supersedeas undertaking may be served and filed by an appellant at any time while a case is pending on appeal.” ORS 19.300(2)
This text was part of HB 2262, a massive 1997 rewrite of the stay statutes – ORS 19.300 et seq & ORCP 72.
According to a section-by-section analysis of the bill prepared by the drafters & advocates of HB 2262 (1997), the automatic stay gives appellants a weapon “as necessary, to prevent respondent from threatened execution of the judgment.”
Within the four corners of the text and relevant legislative history, then, the answer is clear:
Certain appellants, by timely filing of appeals and undertakings, and, on their motion, may secure an automatic stay pending appeal.
But, while ORS 19.335(1) gives certain appellants automatic stays upon a timely appeal, ORS 19.335(6) makes the entire statutory process subservient to ORCP 72.
ORCP 72 begins by allowing immediate enforcement of the judgment:
“* * * unless the court directing entry of the judgment, in its discretion and on such conditions for the security of the adverse party as are proper, otherwise directs.”
This seems to cancel the automatic stay provided by the statute.
But, the second sentence of ORCP 72A, limits the Court’s discretion under ORCP 72A, to the discretion “provided in ORS 19.335, 19.340 and 19.350 or other provision of law.” (emphasis mine). Since the statute incorporates the rule, and, the rule incorporate the statute, the two must, where possible, be read as one.
From the files of the Counsel on Court Procedures (CCP) comes this comment on the derivation of ORCP 72A.
“Section 72 A. is taken from Utah Rule of Civil Procedure 62(c) and restates existing Oregon law. Helms Groover & Dubber Co. v. Copenhagen, 93 Or. 410, 177 P. 935 (1919).* * *.”
Helms Groover & Dubber Co. illustrates that even in 1920, it was recognized that the stay appellants earned by filing an appeal depended entirely on the type of judgment being appealed.
Over the century, stay-pending-appeal law has evolved to this:
1) The automatic stay provisions of ORS 19.335 apply to, and, only to, the judgments listed within that statute; and,
2) The discretionary stay language of the ORCP 72A, or, the companion statute ORS 19.340, apply to all other judgments. (See, ORS 19.350).
- 30 -