152 P. 876 | Or. | 1915
In Banc.
Opinion by
This is a motion to dismiss an appeal. A suit was commenced by T. A. Barton against F. O. Young, N. J. Minton, John Carpenter and J. W. Sheridan to foreclose alleged liens. The plaintiff’s claim in his own right was for boarding laborers who were employed in operating mining claims in Malheur County, Oregon, amounting $485.05. His other demand was for labor performed by such employees, amounting to $1,068.40. The complaint gave the names of such laborers, the number of days each was employed, and the wages he was to receive therefor. In referring thereto and to the plaintiff herein, the complaint reads:
“That said claims and accounts for the labor performed by the said individuals, and each of the said individuals, have been assigned to this claimant prior to the filing of this lien.”
“That the said defendants John Carpenter and J. W. Sheridan are lienholders against the said property, and by reason thereof claim some rights and interests therein, but that the claims of said defendants are subsequent in time and right to the claim of this plaintiff.”
Carpenter’s answer denied some of the averments of the complaint and for affirmative relief set forth his alleged lien against the same mining claims, amounting, to $279.75, and prayed foreclosure, etc. Minton, the owner of the mining claims, answered Carpenter’s cross-complaint denying many averments thereof. For a separate defense he alleged that by a written .lease he demised the real property sought to be encumbered to Young, who covenanted that he would pay all indebtedness incurred in operating the mines, which lease was duly recorded in that county, July-, 1914; that on September 9th of that year, and while Young was operating the mines, Minton caused to be put up thereon notices, specifying the time and place of such posting, as provided in Section 7444, L. O. L., warning all persons that he would not be responsible for any debt contracted by the lessee, in the operation of the mines under the lease; and that Carpenter had notice and knowledge of such warning before performing any work in, on, or at the mines. The prayer of the answer is that the cross-complaint be dismissed. Carpenter’s reply controverted the averments of new matter in such answer. Minton thereupon moved to strike from Barton’s complaint all averments of his individual claim of $485.05, on the ground that the items thereof were nonalienable under the statute of this state. He also moved to strike from such complaint all allegations therein relating to causes so assigned
The statute regulating the procedure in such cases reads:
“Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom. The party appealing is known as the appellant, and the adverse party as the respondent”: Section 549, L. O. L.
“If the appeal is not taken at the time the decision, order, judgment, or decree is rendered or given, then the party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place in the state, and file the original, with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree, or order is entered”: Section 550, L. O. L.
An “adverse party,” within the meaning of this statute, is every party to an action, suit or proceeding whose interest, in respect to the final determination rendered therein, is or might be in conflict with'a modification or reversal of the decision, order, judgment,
“It has constantly been determined by this court that, although parties are both plaintiffs or both defendants, yet if an appeal would unfavorably affect the rights of one of them, as determined by the decree appealed from, he is an adverse party as respects his co-plaintiff or codefendant, and that the jurisdiction of this court depends upon service of the notice upon all such parties” — citing many Oregon decisions on this subject.
The plaintiff’s counsel, contending that the notice of appeal herein was sufficient, relies upon the case of Watson v. Noonday Mining Co., 37 Or. 288 (55 Pac. 867, 58 Pac. 36, 60 Pac. 994). That was a suit to foreclose a lien upon a mining claim. The John A. Roebling-’s Sons Company, a foreign corporation, was made a defendant; the complaint charging that it had or claimed some interest in the premises, but that its right thereto was inferior to the plaintiff’s lien. That corporation answered denying such averment and alleging facts showing it' had a valid lien against the property, which encumbrance it was asserted was superior to Watson’s. The mining company answered putting in issue the validity of such liens. A triál being had resulted in a decree foreclosing both liens. The Noonday Mining Company appealed, but it was insisted that the service of the notice upon the foreign corporation was insufficient to confer jurisdiction, and motion was interposed to dismiss the appeal on that ground. The motion was denied, the court holding
In the case at bar, since the plaintiff’s alleged liens were not foreclosed but were determined invalid, a reversal or modification of the decree will not benefit either of the other parties who were not served with the notice of appeal, but such change must necessarily result in a detriment to each.
The notice in question not having been served on all the adverse parties, this court never secured jurisdic-» tion of the appeal, and hence it is dismissed.
Appeal Dismissed.
