Van Zandt v. Parson

159 P. 1153 | Or. | 1916

Opinion by

Mr. Chiee Justice Moore.

1. The plaintiff’s counsel move to dismiss the appeal on the ground that Mrs. Van Zandt is an adverse party, and, not having been served with a notice of appeal, this court has no jurisdiction of the cause. An adverse party is a plaintiff or defendant in an action or suit whose interest in regard to the judgment or decree appealed from is in conflict with a reversal or modification of the final determination sought to be reviewed: Hamilton v. Blair, 23 Or. 64 (31 Pac. 197); The Victorian, 24 Or. 121 (32 Pac. 1040, 41 Am. St. Rep. 838); Moody v. Miller, 24 Or. 179 (33 Pac. 402); Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997); Stuller v. Baker County, 30 Or. 294 (47 Pac. 705); Conrad v. Packing Co., 34 Or. 337 (49 Pac. 659, 52 Pac. 1134, 57 Pac. 1021); Kramer v. Marsh, 49 Or. 417 (90 Pac. 583); Hafer v. Medford etc. R. Co., 60 Or. 354 (117 Pac. 1122, 119 Pac. 337); State v. McDonald, 63 Or. 467 (128 Pac. 835, Ann. Cas. 1915A, 201); Barton v. Young, 78 Or. 215 (152 Pac. 876); D’Arcy v. Sanford, ante, p. 323 (159 Pac. 567).

2, 3. A text-writer in discussing the rights of a trustee in bankruptcy says:

“He may sue in a state court”: Remington, Bankruptcy, § 1721.

This author in another section observes:

“Where the trustee resorts to the state court to recover fraudulently conveyed property or property otherwise recoverable, he is entitled to all remedies and all relief that would be afforded any other party litigant under the same facts”: Id., § 1760.

A judgment or decree given or rendered by a state court in an action'or suit in which a trustee in bankruptcy is a party and who appears and contests the property rights of the bankrupt is conclusive upon the latter’s estate and estops the creditors from controverting such final determination even in the federal court which has secured jurisdiction of the bankruptcy proceeding. Thus in the case of In re Tiffany (D. C.), 147 Fed. 314, decided August 15, 1906, it was held that the judgment of a state court, in a suit brought by a bankrupt’s trustee, refusing to set aside a transfer of property made by the bankrupt as fraudulent, concludes creditors, who cannot thereafter set up the same ground to defeat the bankrupt’s discharge. It was ruled in the ease of In re Seavey (D. C.), 195 Fed. 825, that where a bankrupt’s trustee instituted proceedings in a state court to set aside as fraudulent an assignment of an alleged interest in certain property under the will of her grandfather, and to establish' his right thereto as trustee, and the bankrupt duly defended such action, in which the trustee was successful, -thé judgment, in the absence of an appeal therefrom, was conclusive, and could not be collaterally attacked or reviewed for error in the bankruptcy proceeding. So, too, a transfer, by a bankrupt, while insolvent, to his wife of property which he omits from his schedule constitutes a concealment of his assets and defeats’ his right to a discharge: In re Graves (D. C.), 189 Fed. 847.

If this court has jurisdiction of the appeal, and upon a review of the evidence should conclude that Mrs. Van Zandt was the owner of*the automobile when the contract of sale was made, and that her creditors were entitled to the money remaining due on the car, such determination would necessarily preclude her discharge in bankruptcy, thus showing she would be affected by a modification or reversal of the decree, and hence an adverse party. No notice of the appeal having been served upon her, this court did not secure jurisdiction of the cause.

The attempted appeal should therefore be dismissed, and it is so ordered. Appeal Dismissed.