French v. McKean

160 P. 1151 | Or. | 1916

Mr. Justice Bean

delivered the opinion of the court.

At the threshold of the case counsel for plaintiff challenge the jurisdiction of this court to review the decree appealed from, for the reason that the notice of appeal was not served upon all of the adverse parties who have appeared in the suit. It appears.from the record that plaintiff, French, instituted a suit and obtained a decree in the Circuit Court of the State of Oregon for Sherman County against all of the defendants herein, declaring a certain judgment and decree in favor of C. E. Johnson, plaintiff therein, and against L. R. French, Harriet E. French, George E. Quiggle, S. Schupbach, Sarah Schupbach, W. C. Repass, Florence Repass; Emil Thielhom, H. G. Kemp, Ben Kivich, Sarah Kivich, and Sam Chavis, defendants therein, for the sum of $500, with interest at 10 per cent per annum, and $150 attorney fees and $31.25 costs, fully paid and satisfied, and enjoining the enforcement thereof on execution; that hy the decree so enjoined it was provided for a sale of real estate upon the foreclosure of a mortgage, and further decreed that the plaintiff therein have execution against L. E. French, Geo. E. Quiggle,- S. Schupbach, H. G. Kemp and Ben Kivich for any balance that remained unpaid after the application of the proceeds of such sale.

In the present suit upon this appeal the notice was served upon plaintiff, L. E. French, but was not served upon any of the defendants. Section 550, L. O. L., provides in so far as it is here applicable:

“An appeal shall be taken and perfected in the manner prescribed in this section, and not otherwise. * * 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,” etc.

S. Schupbach appeared and filed an answer in the cause, and plaintiff contends that notice of appeal should have been served upon this defendant. The judgment enjoined by the decree appealed from was against Schupbach, and if the decree should be reversed and the judgment reinstated Schupbach’s interest would be affected, as according to the adjudication he would be required to pay the amount, and the notice of appeal should have been served upon him.

An adverse party, within the meaning of Section 550, L. O. L., is a party whose interest in relation to the judgment or decree is in conflict with the modification or reversal sought by the appeal: Conrad v. Pacific Packing Co., 34 Or. 342 (49 Pac. 659, 52 Pac. 1134, 57 Pac. 1021); Lillienthal v. Caravita, 15 Or. 339 (15 Pac. 280); Alliance Trust. Co. v. O’Brien, 32 Or. 333 (50 Pac. 801, 51 Pac. 640). This is a jurisdictional matter, and the court has no discretion to exercise: Lane v. Wentworth, 69 Or. 245 (133 Pac. 349). It was said in the latter case:

“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 coplaintiff or codefendant, and that the jurisdiction of this court depends upon service of the notice upon all such parties. ’ ’

The fact that Schupbach claimed to be interested in the suit in another capacity would not change his status as to the judgment.

The appeal is dismissed. Dismissed.