Heider v. Unicume

BEAN, C. J. Respondents move to dismiss this appeal upon the ground, first, that the plaintiff has accepted the judgment of the lower court by paying judgment for costs. It is quite a well-settled rule that if a judgment is awarded against a party, his voluntary payment of the judgment will not preclude him from maintaining an appeal unless it satisfactorily appears that the pay *412 ment was not coerced and was made with a view of settlement: Eilers Piano House v. Pick, 58 Or. 54, 56 (113 P. 54), and cases there cited; Duniway v. Cellars-Murton Co., 92 Or. 113, 115 (170 P. 298, 179 P. 561); Edwards v. Perkins, 7 Or. 149, cited with approval in Moores v. Moores, 36 Or. 261, 263 (59 P. 327). In the present case, the execution having been issued on the judgment for costs to enforce payment thereof, it does not appear that the payment thereof by plaintiff was voluntary or made with a view of settlement, but rather in lieu of an undertaking for the satisfaction of the judgment. The subject-matter of the controversy still remains after the payment of the costs. The point is not well taken. In support of respondents’ motion the following cases are cited: West v. Broadwell, 124 Or. 652 (265 P. 783), and Leonard v. Bonser, 130 Or. 618 (280 P. 340). In West v. Broadwell there was a motion to dismiss, and it appeared that defendants agreed to leave all the hay on the West place, for West, and West agreed to cancel the judgment for costs and Broadwell Brothers agreed to vacate the premises by October 1, 1927. A settlement of the controversy was indicated by an affidavit. That was an action to recover possession of the reaL property. The case differs widely from that in hand. In Leonard v. Bonser, supra, the appeal was dismissed upon an uncontroverted affidavit to the effect that since the appeal was taken the controversy between plaintiff and defendants had been entirely settled, which, as we have noted, is entirely different from the present case. We do not question the ruling in either of the two last named cases. *413 The second ground for dismissal is that the plaintiff failed to serve notice of appeal on defendant L. M. Kramer. Respondent contends that he is a proper and adverse party herein. Section 7-503, providing for the manner of taking an appeal, subd. 1, provides in part: “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”. L. M. Kramer not having appeared in the action, it was not required that service of notice of appeal be made upon him. He, being in default, would not be entitled to be heard if a notice of appeal had been served upon him. In so far as he is concerned the case is settled. The statute is plain and we find no authority for dismissing the appeal for want of service upon him. Under the statute an adverse party required to be served with notice of appeal should also have appeared in the action or suit. Counsel for the motion cites the following cases: In Barton v. Young, 78 Or. 215, 218 (152 P. 876), the defendants answered and the only question in the case was whether the party upon whom the notice of appeal was not served was an adverse party. The case throws no light upon the question of whether an adverse party who has not appeared in the action is required to be served with notice of appeal. In First Nat. Bank v. Halliday, 98 Or. 649 (193 P. 1029), there was a failure to serve the notice of appeal upon a codefendant, “although she had appeared in the suit”. Mr. Justice Burnett very painstakingly refers to the part we have quoted. The appeal was dismissed. *414 Van Lydegraf v. Tyler, 128 Or. 236 (271 P. 740, 273 P. 719), was a suit to foreclose liens. Defendant Tyler had conveyed all his interest in the property involved prior to the improvements for which a lien was claimed and it was held unnecessary to serve notice upon him. The case is not in point. In Moody v. Miller, 24 Or. 179 (33 P. 403), the facts involved were somewhat complicated and peculiar. It was a suit to foreclose a mortgage executed by Mary E. Miller upon two certain tracts of land, one of which turned out in the course of subsequent litigation to be the property of her husband, defendant Charles S. Miller, from whom she had subsequently been divorced. A decree was rendered foreclosing the mortgage. There was a subsequent judgment lien in favor of one Grant. All the defendants were duly served with summons and defendants Mrs. Miller and Grant made default. Defendant Charles S. Miller answered claiming that neither he nor his property was liable for the claim. The motion to dismiss was based upon the proposition that defendants Mrs. Miller and Grant were both adverse parties. It was held that if appellants should prevail it might increase the liability of Mrs. Miller as to the claim of her husband as she would be personally bound for the whole judgment and the entire amount become a lien upon her mortgaged property. The opinion is based upon The Victorian, 24 Or. 121 (32 P. 1040, 41 Am. St. Rep. 838), wherein it was discussed as to who was an adverse party, referring to section 537, Hill’s Code, 1892, stating: “To take an appeal it is required that ‘the appellant shall cause a notice to be served on the adverse party, and file the original’.” The qualification of an “ adverse party or parties as have appeared in the action or suit” is not contained in section 537, Hill’s Code, 1892, as then considered by the court, al *415 though the amendment of General Laws of Oregon, 1901, p. 77, contains the phrase “adverse party or parties as have appeared in the action or suit”. The third ground for dismissal is that the notice of appeal is insufficient under section 7-503, as it does not contain the names of the parties to the action. Service of notice of appeal commences as follows: “In the Circuit Court of the State of Oregon for Yam-hill County, Callie B. Heider, Plaintiff and Appellant, vs. Charles Unicume, as Administrator of the Estate of Wm. Unicume, deceased, Defendant and Respondent. To, B. A. Kliks, Attorney of record for the defendant, Wm. Unicume, herein, and Charles Unicume, as Administrator of the Estate of Wm. Unicume, Deceased, substituted by order of Court herein as defendant in place and stead of Wm. Unicume, deceased”. Then follows the usual notice. The transcript of record filed by appellant in the first instance did not disclose that Charles Unicume, administrator of the estate of Wm. Unicume, deceased, had been substituted as defendant in lieu of Wm. Unicume, deceased, and an additional transcript filed on stipulation of the parties discloses that on May 10, 1932, an order of the circuit court was duly made and entered, substituting Charles Unicume as administrator of the estate of Wm. Unicume, deceased, in place and stead of defendant Wm. Unicume, deceased. We think the record sufficiently shows a regular substitution of defendant named and in view of the fact that such substitution was mentioned in the notice of appeal, no one could have been misled and that in this respect the record is sufficient as regards the substitution of the administrator. The judgment could readily be identified without any extrinsic evidence by the notice. *416 Further objection is urged that L. M. Kramer is not named as a defendant. Subdivision 1 of section 7-503 also provides: “Such notice shall be sufficient if it contains the title of the cause, the names of the parties and notifies the adverse party or his attorney that an appeal is taken to the Supreme or circuit court, as the case may be, from the judgment, order or decree, or some specified part thereof;”. The case is unlike Lecher v. St. Johns, 74 Or. 558, 560 (146 P. 87), where the notice of appeal did not state the judgment appealed from or that it was given in any particular action, but merely the date. The notice in the present case is sufficient to advise the defendant that the plaintiff appeals from the judgment entered in the circuit court to the supreme court, and we think it is sufficient. The title of the cause is slightly irregular, but contains the names of the plaintiff and party defendant interested in this appeal. It is similar to a slight error in the name of the party, but where the name is sufficiently accurate so that everyone interested would know who was intended. The motion to dismiss the appeal is denied.