Cockerham v. First Nat. Bank of Redmond

PER CURIAM. This case comes on to be heard on motion to dismiss the appeal. The suit was instituted for an accounting between plaintiff and defendants on *178 account of a judgment held by defendant bank against plaintiff and which plaintiff claims to have paid. Plaintiff in the suit sought to enjoin defendants from enforcing an execution issued out of the circuit court for Multnomah county on said judgment. Plaintiff appealed from an adverse decree and judgment and gave a stay undertaking on appeal with B. F. Giesy and Frank T. Berry as sureties. Defendants moved to dismiss on three grounds: “1. Decree and judgment was entered January 17, 1930, in this suit against J. C. Cockerham, B. F. Giesy and E. C. Butler, and each of them for $2,673.75 in favor of defendant First National Bank of Redmond. 2. Neither B. F. Giesy nor E. C. Butler was served with notice of appeal herein and neither has appealed from the judgment against him and the time for appeal has expired. ‘ ‘ 3. Respondent, First National Bank of Redmond, excepted to the sufficiency of B. F. Giesy and Frank T. Berry as appellant’s sureties on appeal. Said B. F. Giesy appeared before Honorable John H. Stevenson, presiding judge, and undertook to justify as such surety. Frank T. Berry did not appear before the court to justify and no substitute bondsman has been given in his stead. Said B. F. Giesy is a judgment debtor and therefore disqualified as a bondsman. Frank T. Berry failed to appear or justify and is noi longer a bondsman.” Neither B. F. Giesy nor E. C. Butler is a party in the instant case: Hafer v. Medford & C. L. R. Co., 60 Or. 354, 357 (117 P. 1122, 119 P. 337); Medynski v. Theiss, 36 Or. 397, 399 (59 P. 871). B. F. Giesy and E. C. Butler were sureties on the undertaking given for the temporary injunction allowed plaintiff in the circuit court. Defendants were not entitled to judgment against B. F. Giesy and E. C. Butler as sureties on the *179 bond to protect defendants against any damages resulting from the injunction. The judgment should have been entered against J. C. Cockerham alone. His sureties are not liable on the undertakinguntil damages have been lawfuly assessed. Neither B. F. Giesy nor E. C. Butler was entitled to service of the notice of appeal. Neither of those persons could be injuriously affected by the appeal. The interests of both of them are involved in the interest of appellant. The decree and judgment in the instant case against appellant was entered January 17, 1930. Plaintiff gave a stay undertaking on appeal and it was served on defendants February 4 and filed February 5. Exceptions to the sureties on the undertaking on appeal were served on plaintiff by defendants filed February 8. Notice that sureties would justify on February 24 was served on defendants February 17. All of the service on defendants was made on their attorney, George S. Shepherd, who duly accepted service. The following indorsement appears upon the undertaking on appeal. “The within undertaldng approved and allowed this February 25, 1930. “John H. Stevenson, “Judge.” There is no merit in any of the grounds assigned for dismissing the appeal. Motion is denied. McBride, J., absent.