Opinion
147203; CA A37416
Argued and submitted January 26, 1987.
Appeal dismissed August 5, reconsideration denied September 25, petition for review allowed December 30, 1987 ( 304 Or. 680). See later issue Oregon Reports
Appeal from the Circuit Court, Marion County, Duane R. Ertsgaard, Judge.
William G. Paulus, Salem, argued the cause for appellant. With him on the briefs was Garrett, Seideman, Hemann, Robertson De Muniz, P.C., Salem.
Paul Andrew Lee, Assistant City Attorney, Salem, argued the cause for respondents. With him on the brief was William J. Juza, City Attorney, Salem.
Before Joseph, Chief Judge, and Newman and Deits, Judges.
JOSEPH, C. J.
Appeal dismissed.
Plaintiff was fired from his job with the Salem Fire Department because of an incident in which he had responded to a fatal single-car accident, found a twenty dollar bill in the vehicle and put it in his pocket. The Civil Service Commission affirmed the termination. On writ of review, the trial court upheld the dismissal. Plaintiff filed a motion for a new trial, pursuant to ORCP 64C, requesting that the judgment be set aside and a new trial granted on the ground that there is insufficient evidence to justify the judgment and that "it is against the law." The court denied that motion. Plaintiff filed a notice of appeal to this court 44 days after entry of the original judgment, but less than 30 days after entry of the order denying the motion. Defendants have moved to dismiss the appeal.
If a motion for a new trial is made, ORS 19.026(2) extends the time for filing a notice of appeal to 30 days after entry of the order that disposes of that motion. Defendants argue that plaintiff's motion was not a proper motion for a new trial; therefore, the appeal should be dismissed as untimely. We agree.
The general rule in a writ of review proceeding is that the trial court is limited to review of the record made in the tribunal below and cannot conduct a de novo or evidentiary proceeding. The exceptions to that rule relate only to establishing procedural irregularities, defects or misconduct. Bienz v. City of Dayton, 29 Or. App. 761, 784, 566 P.2d 904, rev den 280 Or. 171 (1977); Tierney v. Duris, 21 Or. App. 604, 610, 536 P.2d 431, rev den (1975); Duddles v. City Council of West Linn, 21 Or. App. 310, 328, 535 P.2d 583, rev den (1975). In this case, there are no factual questions; the only questions are about the legal adequacy of the notice and hearings. Because the trial court's initial review only involved issues of law, there were no issues of fact to be re-examined after its judgment, as required by the definition of "new trial" in ORCP 64A. See Carter v. U.S. National Bank, 83 Or. App. 587, 591, 732 P.2d 934, rev allowed 303 Or. 483 (1987). The motion for a new trial did not toll the time for appealing under ORS 19.026; therefore, the notice of appeal was 14 days late.
"A new trial is a re-examination of an issue of fact in the same court after judgment."
Appeal dismissed.