Jackson County v. Bloomer

41 P. 930 | Or. | 1895

Opinion by

Mr. Chief Justice Bean.

The rule is well settled in this state that every party to a litigation whose interests in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the appeal is an “adverse party” within the meaning of section 537 of Hill’s Code, and must be served with the notice of appeal; and if such party is not served the appeal must be dismissed. And the fact that a party whose interests are adverse to the appellant, has made default, does not preclude the necessity of serving such notice of appeal upon him: The Victorian, 24 Or. 121 (41 Am. St. 838, 32 Pac. 1040); Moody v. Miller, 24 Or. 179 (33 Pac. 402); Hamilton v. Blair, 23 Or. 64 (31 Pac. 197). If, then, Bloomer has an interest in sustaining the judgment from which this appeal is taken, he is an adverse party to the appellant, and the failure to serve him with notice of the appeal is fatal, and the appeal should be dismissed. Now, the undertaking on which this action was brought is a joint obligation of Bloomer and the sureties, in so far, at least, as that all are liable or none, and, therefore, although he made default, the defense successfully made by the other defendants, going as it did to the merits and showing that the plaintiff had no right of action against any of the defendants, inures to his benefit and prevents the entry of judgment against him on his default. The rule on this question is thus clearly stated by Mr. Black in section 209 of his work on Judgments: “In an action of contract against several defendants, if one of them suffers default, and another, under the general issue, sets up and maintains a defense which negatives the plaintiff’s right to recover against either of the defendants, and shows that he has no cause of action, the plaintiff will not be entitled to judgment against the one who was defaulted, but, on the contrary, the successful defense will inure to the latter’s benefit, and judgment must be rendered for both the defendants.” And to this effect are the authorities: French v. Neal, 24 Pick. 55; State v. Gibson, 21 Ark. 140; Morrison v. Stoner, 7 Iowa, 493; Adderton v. Collier, 32 Mo. 507; Waugh v. Suter, 3 Ill. App. 271; Stapp v. Davis, 78 Ind. 128. From this it seems manifest that Bloomer’s interests would be materially affected by the reversal of this judgment, for the reason that it appears from the record as it now stands that plaintiff has no right of action against him or his sureties for a breach of the conditions of his undertaking on account of any of the matters or things alleged in the complaint, and so long as the judgment stands unreversed it is in effect a judgment in his favor, and prevents the entry of a judgment on his default. He is, therefore, vitally interested in sustaining the judgment as it now stands, and consequently is an adverse party to this appeal.

It was suggested by plaintiff’s attorneys that Bloomer was not a necessary party to this action, and was never in fact legally served with summons, but these questions are hardly open to • the plaintiff here. Whether he was a necessary party or not, the plaintiff saw fit to make him a party, caused a writ of attachment to issue and be levied upon his property, obtained an order for the publication of summons, caused the summons to be published directed to him, and an alleged proof of such publication to be made, and the record shows that all the defendants appeared and demurred to the original complaint, and that when the cause came on for trial Bloomer “made default.” Under these circumstances the court will not, at plaintiff’s suggestion, critically examine the procedure by which it sought and claimed to have obtained jurisdiction of Bloomer, for the purpose of avoiding the effect of a failure to serve him with a notice of appeal. The motion will be allowed. Dismissed.