41 P. 155 | Or. | 1895
The rule is universal that a party will not, without the consent of his adversary, be permitted to split up his demand and maintain separate
in construing these sections of the statute, says: “These'two provisions, taken together, seem to restrict the review to the part of the decree specified in the notice, although the latter portion of section 533 of the Code, (Hill’s Code, § 543,) provides that, upon an appeal from a decree given in any court, the suit shall be tried anew upon the transcript and evidence accompanying it. This would seem to imply that the whole case would be before the appellate court for trial de novo, though it might be sufficient answer to repel the inference that an appeal from a part of a decree is not ‘an appeal from a decree,’ within the meaning of the above provision; that said provision was only intended to apply to an appeal from an entire decree. Still, I think a more satisfactory construction can be given to the provision, and make it harmonise with the view I have indicated, by construing the several provisions together, and giving effect to all of them. Under such construction the conclusion would necessarily follow that the trial of the suit anew would be confined to a trial of the case affecting the part of the decree specified in the notice
Dismissed.