Earle v. Holman

KELLY, J. Motions have been interposed by D. H. Cameron, ancillary receiver of Union Indemnity Company, intervener, Willamette Construction Company, a corporation, claimant, G. F. Owens, claimant, and Laura Hotchkiss, claimant, to dismiss the appeal of Philip Explosives Company, a corporation, claimant, which is prosecuting its appeal alone, and the appeal of E. G. Clarke, K. E. Fahlstrom and N. Sable, claimants, who have joined in prosecuting an appeal. As one ground for dismissal, both motions urge that this court is without jurisdiction of the subject matter, because this proceeding is special and statutory and no appeal is authorized or provided by the statute prescribing the procedure to be observed in cases of this character. In support of this contention movents cite In re Estate of Goldsmith, 12 Or. 414 (7 P. 97, 9 P. 565), which holds that the insolvent act then in effect granted a jurisdiction by virtue of a special statutory authority to be exercised over a subject not within the ordinary jurisdiction of courts of justice. Movents also cite Portland v. Gaston, 38 Or. 533 (63 P. 1051), which holds that, in the absence of legislative enactment to the contrary, it is probable that an appeal will lie from the judgment or decrees of the cir *582 cuit court. That is a case involving an assessment of damages caused by the opening and establishment of a street. The charter of the city provided for an appeal to the circuit court and a trial by jury in that court, and also provided that the verdict should be a final and conclusive determination of such assessment. This provision of the charter was held to be controlling in respect to the right of appeal. Macartney v. Shipherd, 60 Or. 133 (117 P. 814, Ann. Cas. 1913D, 1257), is also cited. There it is held that an order denying a motion for a new trial is not appealable. Portland v. White, 106 Or. 169 (211 P. 798), also cited, declares the rule that where a particular jurisdiction is conferred upon an inferior court, its decision, when acting within its jurisdiction, is final unless provision is made for appeal therefrom. This was an attempted appeal from a judgment of the circuit court rendered upon an appeal from the municipal court of the city of Portland. We note the following statement in the opinion: “ It is not a matter over which the Circuit Court exercises jurisdiction independently of the Constitution and statutes of the state.” Cohn v. State Tax Commission, 118 Or. 92 (245 P. 1085), also cited, holds that the statute imposing a tax on incomes is complete within itself, and no right of appeal having been awarded in this special statute for the collection of taxes on incomes, this court was without jurisdiction to entertain such an appeal. The distinction between these cases and the case at bar is obvious. Independently of constitution or statute, the circuit court, as a court of general jurisdiction, *583 is authorized to make distribution of trust funds. In that regard, it is not a court of inferior or limited jurisdiction, there is no express legislative inhibition against an appeal in cases of this character, the decree herein is not analogous to an order overruling a motion for a new trial nor to an order of a tax commission levying a tax upon incomes. Courts of equity are vested with jurisdiction over trust funds independently of the constitution and statutes of the state. In such eases the right of appeal exists by virtue of the general statute irrespective of whether or not the special statute governing a change in procedure so declares: In re N. P. P. B. M. v. Ah Won et al., 18 Or. 339 (22 P. 1105). Claimants herein had the right to prosecute an appeal. It is urged that both of these appeals should be dismissed because said appellants failed to file with the clerk of the circuit court a notice of appeal with proof of service endorsed thereon showing service of such notice of appeal on E. M. VanDeVenter, Ole Carlson, Mary Carlson, Donald Woodward, Inc., a corporation, W. P. Fuller & Company, a corporation, or L. H. Hoffman, claimants herein, or on any attorney for any of said parties. Except as to Mary Carlson, the defects in the return of service of this notice of appeal are corrected in amended returns which are tendered by the appellants. Mary Carlson is not a party to the decree. A claim based upon a judgment rendered in favor of Mary Carlson and Ole Carlson was allowed in favor of Ole Carlson alone. Mary Carlson submitted to this entry and can not now be deemed to be an adverse party upon whom service of notice of appeal is required. *584 The claims of Donald Woodward, Inc., W. P. Fuller & Company and L. H. Hoffman were disallowed by the trial court on January 21, 1935. The decree, from which these appeals are prosecuted, was entered on November 19, 1935, and amended on January 7, 1936. We mention this in order that we may not be understood as holding that these three claimants, last above named, are adverse parties upon whom service of notice of appeal is required. The return of service of the notice of appeal of Clarke, Fahlstrom and Sable is incorporated in and a part of the return of service of the undertaldng on appeal, and this return accompanies the notice of appeal and undertaking on appeal. Strictly speaking, the return is not endorsed upon the notice of appeal. It is however attached to the notice of appeal and undertaking. The cases cited to this point by movents are Catlin v. Jones, 56 Or. 492 (108 P. 633); Muckle v. Columbia County, 56 Or. 146 (108 P. 120); Lane v. Wentworth, 69 Or. 242 (133 P. 348, 138 P. 468). In'these cases, no return of service was filed with the notice of appeal. In the case at bar, the return was irregular and defective and, hence, subject to amendment. Appellants have moved to be permitted to file an amended return which corrects the irregularities and defects in the original return. Such procedure has received the sanction of this court: In re Santiam Reclamation Co., 128 Or. 140 (247 P. 1077); Northwestern Clearance Co. v. Jennings, 106 Or. 291, (209 P. 875, 210 P. 884); Mitchell v. Coach, 83 Or. 45 (153 P. 478, 162 P. 1058); Barbre v. Goodale, 28 Or. 465 (38 P. 67, 43 P. 378). It is urged by movents that a defective acknowledgment of service is not subject to amendment by supple *585 mentary proof of service. We find no distinction in principle between such amendment and one which is made by a supplementary acknowledgment of service. The basis in both instances is that the original defect may be corrected by showing the true facts upon which the jurisdiction of the court depends. It is also argued by movents that the omission from appellants’ return of service by mail of their notice of appeal of the phrase, “at his office or place of residence”, is fatal to the jurisdiction of this court. This argument is based upon the fact that this return of service is upon a separate piece of paper from the notice of appeal and that when service is made by mail the statute requires that the notice so mailed be addressed to the office or place of residence of the party so served: Oregon Laws 1933, p. 349, chap. 238, amending section 7-404, Oregon Code 1930. We think that such a return may be amended. It is further contended by movents that the interests of Clarke, Fahlstrom and Sable are separate and distinct from each other and are conflicting one with the other. In this regard, attention is called to the fact that the fund in dispute is not sufficient to pay all claimants in full and that the allowance on appeal of the claim of any one of these appellants would cause a ratable diminution in the distributive share of the others, if such claims are also allowed on appeal. We are told by movents that thus it would be to the interest of each of these three appellants to burke the appeal of the other and thereby ratably increase his own recovery, if successful on this appeal. To this point, movents cite Legro v. The Drainage Commissioners, Etc., 297 Ill. 155 (130 N. E. 369), which is a case wherein several landowners sought to appeal *586 jointly from an order reclassifying the lands in a drainage district. There, the court say: “Whether the appeal be joint or several in cases of this character, the complaint of each land owner must be heard as to the correctness of the classification of his particular land.” In the case at bar, the amounts of the claims represented by the appellants are not in dispute. Two of them arise because each claimant recovered a judgment against a third party who carried indemnity insurance with the Union Indemnity Company. In one instance, the Union Indemnity Company reinsured another insurance company in which the judgment debtor had a policy issued by another company. The third claim arises because of a policy upon a safe. It is manifest that these appellants are jointly interested in determining whether their claims, which appear to be based upon indemnity insurance, may participate in the distribution of funds which are declared by the statute to “be held in trust for all holders, within the state of Oregon, of the obligations of such insurance company which originated through the writing of either surety or fidelity contracts within the boundaries of the.state of Oregon: Oregon Laws, Second Special Session, 1933, Chap. 42, p. 121, amending section 46-1401, Oregon Code 1930. Their position is analogous to that of the appellants in In re Sutro’s Estate, 152 Cal. 249 (92 P. 486, 1027), wherein all of the appellants were interested in upholding the provisions of a will which the trial court had held to be invalid. The motions of appellants to amend their returns of service of their respective notices of appeal are sustained and leave so to amend is granted. The motions to dismiss these appeals are overruled.