299 P. 299 | Or. | 1931
Lead Opinion
In Banc. This matter comes on to be heard on motion of defendant and respondent to dismiss the appeal. Plaintiff and appellant served a notice of appeal on the 17th day of March, 1930, but never served an undertaking on appeal. Appellant filed an undertaking without serving it on respondent. Service of the motion to dismiss was accepted in Multnomah county on the 13th day of May by John A. Jeffrey, one of the attorneys for appellant. The motion with proof of service indorsed thereon was filed in this court on the 14th day of May, 1930. Appellant has not made any request to file an amended undertaking or to excuse his failure to comply with the law. The law requires the undertaking with proof of service indorsed thereon to be filed within 10 days after service of the notice of appeal: § 550, Or. L., subd. 2. Respondent did not discover that an undertaking had been filed in this court until the 7th day of May, 1930.
The motion will have to be allowed and the appeal dismissed.
Addendum
An examination of the complaints, that is, of the one filed by the wife in Multnomah county and the other filed by the husband in Washington county, discloses that each sought the divorce on charges of cruel and inhuman treatment, and that each prayed for the custody of the minor children. *336
It is evident from the foregoing recitals that more than seven months after the appellant was served with the complaint and summons in the suit for a divorce, instituted by his wife in Multnomah county, he commenced a similar suit in Washington county. The circuit court for Multnomah county could adjudicate all of the plaintiff's rights as completely as the circuit court for Washington county. Thus, when the complaint in the second suit was filed there was pending in that court two suits between the same parties to test the same rights. Under the familiar rule, which seeks to save expense to litigants, and unnecessary, embarrassing conflicts between courts, by declaring that the first which acquires jurisdiction shall be permitted to retain it, the circuit court for Washington county properly overruled the defendant's demurrer to the plea in abatement, and sustained her plea when he declined to answer: Matlock v. Matlock,
The service of the complaint and summons in the Multnomah county suit upon the husband, his motion for a change of venue, his motion attacking the form of the pleadings, and his answer to the merits, clearly established the jurisdiction of the circuit court of Multnomah county over both himself and the subject-matter of the suit: State ex rel. v. Norton,
If the plaintiff believed that the circuit court of Multnomah county erroneously denied his motion for a change of venue in the cause pending in that court, his remedy was an appeal in that suit, but not in this.
It follows from the foregoing that the decree of the circuit court will be affirmed.
BEAN, C.J., BELT and KELLY, JJ., concur. *338