Flynn v. Davidson

155 P. 197 | Or. | 1916

Lead Opinion

Mr. Justice Harris

delivered the opinion of the court.

1, 2. As a general rule, an order setting aside a default is of an intermediate character, and is not appealable, although it may be reviewed if an appeal is taken from the final judgment or decree: Taylor v. Taylor, 61 Or. 257 (121 Pac. 431, 964); Hall v. McCan, 62 Or. 556 (126 Pac. 5). The appellant concedes the general rule, but relies upon what is said in First Christian Church v. Robb, 69 Or. 283 (138 Pac. 856), contends that the order was void and therefore an utter nullity, and argues that a void order is appeal-able The merits of the order can neither be examined nor determined on a motion to dismiss the appeal. Since nothing remains to be done on the appeal except the filing of a brief by the respondent, and in view of the condition of the record and the question involved, we do not now decide whether the order is appealable, but merely deny the motion, with permission to renew it on the final hearing.

On August 29,1914, plaintiff began this suit to foreclose a certificate of delinquency of taxes against certain property in Sumpter. . Service was had upon the defendant Davidson by publication. A final decree of foreclosure upon defendant was entered on November 7, 1914. Thereafter, on September 8, 1915, Davidson filed a motion to set aside the decree and to be permitted to file Ms objections and defend. Upon a hearing the trial court, on October 8,1915, entered an order vacating the decree and permitting the defendant to file his answer to the complaint. From this order, plaintiff appeals. Heretofore a motion to dismiss the appeal was submitted to this court, and an order was then made denying the motion, but with leave to present the same upon the final hearing.

3. The appellant did not file an abstract of the record within 20 days after the transcript was filed, as prescribed by Rule VI of our rules (56 Or. 616, 11.7 Pac. ix). The record shows that there has not been any disposition unduly to delay the hearing; only a few days of delay resulted from an honest mistake in calculating the time for the filing of the abstract, and therefore the mistake should be excused: St. Martin v. Hendershott (now pending on merits), (151 Pac. 706).

The motion to dismiss is denied, with the right to renew the motion when the cause is heard on the merits. Motion Denied.

Mr. Justice Eakin took no part in the consideration of this case.

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Opinion on the Merits

Appeal dismissed May 23, 1916.

On the Merits.

(157 Pac. 788.)

Appeal Dismissed. For appellant there was a brief over the names of Mr. George E. Allen, Mr. A. A. Smith and Mr. John L. Band, with oral arguments by Mr. Allen and Mr. Smith. For respondent there was a brief over the names of Mr. J. J. Heilner and Messrs. Wood <£ McCulloch, with an oral argument by Mr. Heilner. Mr. Justice Benson

delivered the opinion of the court.

4c. We find it necessary at this time to consider only the motion to dismiss the appeal. Section 3710, L. O. L., among other things, says:

“Any defendant against whom such judgment and decree has been rendered, and who has not been personally served with the notice or summons of the application for judgment or decree of foreclosure, and who has not appeared therein, may, upon good cause shown and upon such terms as may be proper, be allowed to defend and file his objections after such judgment or decree, and within one year after the entry thereof, upon such terms as may be just. ’ ’

The order of the court permitting the defendant to answer was clearly an intermediate order, and not appealable unless void: Section 548, L. O. L.

5. In tbe case at bar tbe court bad jurisdiction of tbe parties and of tbe subject matter. It bas been frequently beld that, if tbe court bas jurisdiction of tbe parties and of tbe subject matter, tbe order is not void, although it may be erroneous: 8 Words and Phrases, 7341, and cases there cited.

It follows that it is not an appealable order, and tbe appeal is therefore dismissed. Appeal Dismissed.

Me. Justice Eakin absent.