Holder v. Harris

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 434 IN BANC. MOTION TO DISMISS APPEAL OVERRULED. The plaintiff being defeated in this suit, initiated an appeal to this court. There is no question as to the service against defendants Harris and Mingo, but there is a motion to dismiss, because it does not appear from the return that Sutherlin, an alleged adverse party, was properly served. The return of service is by acceptance in due form signed by Winter and Maguire, attorneys for Mingo, and by Wood, Montague and Matthiessen, attorneys for Harris. The acceptance, as to Sutherlin, is signed as follows: "David E. Lofgren by J H attorney for Fred Sutherlin." Section 539, Or. L., prescribing the method of service of notices, provides: "If upon an attorney, it may be made during his absence from his office by leaving the copy with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening in a conspicuous place in the office." It does not appear that Lofgren was absent from his office, or that the mythical "J H" was in charge of the office, or a clerk therein; or, that he had any authority to accept service. The return is insufficient. This brings up the question as to the necessity of serving Sutherlin. *Page 436 The complaint was in equity to determine the title of plaintiff to certain real and personal property described therein, substantially setting up title and right of possession of said property and alleging that Willula Kent Mingo claimed to be the adopted daughter of Annie L. Kent, plaintiff's intestate, and that Fred Sutherlin claimed to be the sole and only heir of Annie L. Kent. It is not necessary to set forth here other alleged facts tending to show plaintiff's right to possession of said property. There are allegations that the defendants have no right or interest in the same. All the defendants were duly served, and Harris and Mingo appeared by their respective attorneys. No appearance was made by Sutherlin at any stage of the case. The case finally went off on a demurrer to the complaint by the appearing defendants. The plaintiff elected to stand on her demurrer, and, from an order of dismissal, she appealed to this court. If Sutherlin is an "adverse party" within the meaning of the statute, appellant is clearly out of court. But, in our opinion, he is not such an adverse party as necessitated the service of a notice of appeal on him. Section 550, Or. L., inter alia, provides: "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 theaction or suit." We italicize the last line because it is fatal to respondents' contention. Sutherlin did not appear in *Page 437 the suit and service of notice of appeal upon him was unnecessary. The motion to dismiss is overruled. MOTION OVERRULED.