Medynski v. Theiss, 59 P. 871

Medynski v. Theiss

59 P. 871 | Or. | 1900

Mr. Justice Moore,

after making the foregoing statement of the facts, delivered the opinion of the court.

1. Plaintiff’s counsel move to dismiss the appeal, contending that this court is without jurisdiction in consequence of the appellants’ failure to serve the notice of appeal upon Crowell and the receiver. To inaugurate an appeal, the appellant is required to cause a notice thereof to be served on the adverse party: Hill’s Ann. Laws, § 537. A party to a judgment or decree, to be adverse within the meaning of the statute, must have been made a party at the commencement of the suit or action, or thereafter brought in, by order of the court, in some appropriate manner : Barger v. Taylor, 30 Or. 228 (42 Pac. *400615, 47 Pac. 618). Crowell is in privity with the plaintiff by reason of the assignment, and a modification or reversal of the order complained of would be binding upon him, and adverse to his interests ; but he is not a party within the definition of the term. What is said of him is also true with respect to the receiver, who is a ministerial officer appointed by the court to carry out its orders, and no more necessity exists for serving the notice of appeal on him than upon the judge who presided at the trial.

2. It is also insisted that the appeal should be dismissed because the printed abstract of the record does not contain an assignment of errors, as required by Rule 9 of this court: 24 Or. 591. The abstract contains a synopsis of the pleadings and of the referee’s findings, and also the findings and decree of the court, the motion and affidavit for the order requiring the receiver to pay the disputed claim, and the judgment of the court thereon, and by stipulation of counsel is treated as a transcript. Notwithstanding appellants’ failure strictly to comply with said rule, it sufficiently appears from the abstract that the alleged error, upon which the appellants rely, is the order complained of, and it therefore accomplished the purpose intended by the rule, and is a substantial compliance therewith : Neppach v. Jones, 28 Or. 286 (39 Pac. 999, 42 Pac. 519).

Considering the case upon its merits, the original decree being final, the question presented is, does it provide for the payment of Medynski’s claim? The court having ordered the receiver to pay the debts of the last firm, it is evident that Medynski’s claim, to be entitled to payment, must be a debt incurred by the firm after Bashford became a member of it. The referee, alluding to such firm, and the labor performed for it by Medynski, made the following fi nding : 11 Seventh.. That th e said partnership is *401indebted at the present time as follows, to wit: To F. Y. Medynski, at $10 per week from about April 1, 1898, to May 1,.1894, fifty-six weeks, $560.” The report of the referee, haying been modified as hereinbefore indicated, was approved, and adopted as the findings of the court. It will be remembered that the court found that Bashford did not become a member of the firm until March 2,1893, which renders it necessary to carry the referee’s report in relation to the dealings of the old firm forward one year. Such report, relating to the labor performed by the parties under the head of “Contributed by Medynski,” contains the following : “April 5, 1893, by fifty-five weeks, $825.” The report also shows that between March 2, 1892, and March 2, 1893, Medynski received from the firm, in goods and money, the sum of $186. This service having been performed, and payment on account thereof made, before Bashford became a partner, as the court finds, the items of credit and debit must be deducted from the account of the new, and embodied in that of the old, firm, as found by the referee. His report shows that after March 2,1892, and before the dissolution of the firm, Medynski contributed $834, of which $825 was paid in between March 2, 1892, and March 2, 1893. He must, therefore, have contributed $9 after the latter date. So, too, after he withdrew $1,217.49 after March 2, 1892, of which $186 was drawn out within one year after that date and $337 prior thereto, he must necessarily have withdrawn $523 before and $1,031.49 after the new firm was organized. Incorporating these items into the referee’s report, as amended, the court’s finding is, in effect, as follows: “That prior to March 2, 1893, Medynski contributed to the assets of the firm the sum of $1,613.08 and withdrew $523, and thereafter paid in $9 and withdrew $1,031.49,” It will thus be seen that, Medynski having *402contributed $9 after Bashford became a partner and withdrawn $1,031.49, it is certain the new firm did not owe him $560 on account of labor, but, giving him credit for that amount, he overdrew his account to the extent of $462.49. Such is the effect of the court’s modification of the referee’s report, necessarily extinguishing $560 which the referee found to be a debt of the new firm, thereby leaving nothing in Medynski’s favor upon which the decree can operate. The court found that the money paid by Bashford — $5,000—should be equally credited to the accounts of Medynski and Thei'ss as a contribution made by them, but, as the old firm was indebted beyond this sum, the burden of paying which was assumed by Medynski and Theiss, the sum so received must have been applied by them in discharging their obligations. Medynski’s claim, not being a debt of the last firm, did not come within the purview of the decree, and hence the court erred in requiring the receiver to pay the same to Crowell, for which reason the order complained of is set aside, and the cause remanded, with instructions to distribute the fund as provided by the terms of the decree.

Reversed.