Ekerson v. Ekerson

PER CURIAM. On the twenty-fifth day of September, 1925, the plaintiff filed a suit for divorce. On the sixth day of October, 1925, the defendant filed a general demurrer, the disposal of which does not appear in the record. On the same date the defendant filed an affidavit asking for attorney’s fees and support pendente lite, which was contested by plaintiff. On the fourth day of December, 1925, the defendant filed an answer and cross-complaint asking for a divorce against the plaintiff. On the twenty-sixth day of January, 1926, the court, after having heard the argument of counsel,' made an order requiring the plaintiff to pay the sum of $75 attorney’s fees. On the twenty-seventh day of January, 1926, the court made findings of fact in favor of the defendant, on her cross-complaint, claiming she was entitled to a di *404 vorce, and requiring the plaintiff to contribute the sum of $50 per month to her support and maintenance and to pay the costs and disbursements. On the twenty-ninth day of January, plaintiff filed and served upon the defendant a notice of appeal, which was signed by appellant’s attorney and reads as follows: “In the Circuit Court of the State of Oregon for the County of Marion. “H. L. Ekerson, Plaintiff, vs. “Josephine Ekerson, Defendant. “Notice of Appeal. “Comes now the plaintiff, H. L. Ekerson, in the above entitled cause and gives notice to the defendant, Josephine Ekerson, that he hereby appeals from all orders, judgment and decrees rendered by the above-entitled Court in the above-entitled cause and appeals from the whole thereof to the Supreme Court of the State of Oregon.” The respondent moves to dismiss the appeal on the ground that the notice does not sufficiently describe the decree appealed from. It is provided in Section 550, Or. L.: “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.” Comparing the instant notice with the statute, we find that it contains the title of the cause and the names of the parties and it notifies the defendant by name that the plaintiff appeals to the Supreme Court. The question -then is as to the description of the judgment. It is said, indeed, that the appeal is taken *405 from “all orders, judgments and decrees rendered by the above entitled court in the above entitled cause.” On the principle that the greater includes the less, this description certainly does include the final decree in the instant suit from which alone the appeal can be taken. All the language descriptive of any order not appealable may be rejected as surplusage. The statute does not require the date of the judgment to be specified. In the instant notice we have every element required by the statute as above quoted, and it is therefore sufficient within the doctrine of Lee v. Gram, 105 Or. 49 (196 Pac. 373). For appellant thefe was a brief and oral argument by Mr. J. F. Clark. For respondent there was a brief and oral argument by Mr. Guy O. Smith. The motion to dismiss is overruled. Motion Overruled.