Adams v. Kennard

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 86 In Banc. DISMISSED. REHEARING DENIED. This cause is before us on a motion to dismiss an appeal. The plaintiffs instituted a suit against William Kennard and George W. Bates, Jr., who were the executors and trustees under the will of Truman L. Adams, deceased, and Harry L. Raffety, as agent and attorney for the said George W. Bates. The three defendants answered separately appearing by different attorneys. The suit is for an accounting and damages based upon an alleged fraudulent sale of the property of the estate by the defendants to said William Kennard. A decree was rendered in favor of the plaintiffs against the defendant, William Kennard, who appeals. The decree dismissed the complaint as against the other defendants, Bates and Raffety, and awarded a judgment for costs in favor of Bates against the plaintiffs. The appellant, William Kennard, served a notice of appeal upon the plaintiffs only. Plaintiffs moved to dismiss because the defendants, George W. Bates and Harry L. Raffety, are necessary parties in this court. It is well settled in this state that any party whose interestsmight be adversely affected by the decree entered in this court is a necessary party to the appeal. "Upon an appeal, the appellate court may affirm, reverse, or modify the judgment or decree appealed from, in the respect mentioned in the notice, and not otherwise, as to any or all of the parties joining in the appeal, and may include in such decision any or all of the parties not joining in the appeal,except a codefendant of the appellant against whom a severaljudgment or decree might have been given in the court below; and may, if necessary and proper, order a new trial." Section 557, Or. L. The appellant, Kennard, appealed from the entire decree. The language in the notice of appeal does *Page 88 not admit of any controversy. There was only one decree entered. The appellant, with commendable zeal, contends inasmuch as the appeal was directed to the plaintiffs and refers to the appeal as being against appellant, that the appeal is therefore from only so much of the decree as is against the appellant. However, he does not find his appeal to that part of the decree which is adverse to his client but appeals from the decree and the whole thereof. The concluding language in the notice of appeal is as follows: "Does hereby appeal to said supreme court from the whole andevery part of said decree made and entered in the above entitled court and case." The defendants, George W. Bates, Jr., and Harry L. Raffety, were codefendants of the appellant. A separate decree not only might have been given in the court below against them, but in this case a separate decree was actually rendered in their favor. The notice of appeal is as much from the parts of the decree dismissing the complaint as to Bates and Raffety as it is to the part of the decree against the appellant. The notice of appeal reads: "From the whole and every part of said decree." This court has the power upon the appeal "to affirm, reverse or modify the judgment or decree appealed from, * * and may, if necessary and proper, order a new trial." Powell v. Dayton, S. G.R.R.Co., 13 Or. 445, 446 (11 P. 222); State v. Richardson,48 Or. 309, 314 (85 P. 225, 8 L.R.A. (N.S.) 362); Kenworthy v.Slooman, 62 Or. 604, 607 (125 P. 273). *Page 89 In State v. Richardson, 48 Or. 309, 314 (85 P. 225, 8 L.R.A. (N.S.) 362), this court, speaking through Mr. Justice MOORE, used this language: "When, on appeal from a decree in equity, the cause is sent back because the complaint is considered insufficient or the evidence inadequate to support a material averment, no final decree is rendered in this court, except to set aside the decree of the court below and to require further proceedings to be had therein. The rule, therefore, as promulgated in Powell v.Dayton S. G.R. Ry. Co., 13 Or. 446 (11 P. 222), applies only to suits in equity. Under the authority in Powell v. Dayton S. G.R. Ry. Co., this court has the power to reverse the decree of the court below and remand the case. "The granting of a new trial wipes out the previous adjudication, and the case proceeds de novo, and must be conducted, as far as practicable, as if there had been no previous trial. Unless limited to particular issues or parties, a new trial reopens all the issues in the case, although some of the issues were found in favor of the party asking for the new trial, and the court will not ordinarily restrict the new trial to the issues found against such party, without the consent of the adverse party." 20 R.C.L. 317, § 101. "The effect of granting a new trial is to set aside both the verdict and the judgment, without any specific mention of either. It places the case exactly in the position it occupied before there had been a trial, and the party stands as if he had never been tried. When granted in general terms it operates as a new trial as to all the parties, reopens all the issues in the cause, and amendments to the pleadings may be permitted." 20 R.C.L. 313, § 97. While ordinarily in appeals from a decree this court will try the issues anew, yet it has the power to set aside the decree of the Circuit Court and *Page 90 remand the cause for further proceedings. If that should be done in this suit it might place all the parties in the same position in which they were at the commencement of the trial in the Circuit Court. The defendants, George W. Bates, Jr., and Harry L. Raffety, are interested therefore in maintaining the decree as it now is, and are necessarily adverse parties to the appellant in this appeal. The case of First Nat. Bank v. Halliday, 98 Or. 649 (193 P. 1029), is controlling. The facts in that case were similar to the facts in this case on principle. The notice of appeal is very similar to the notice of appeal in the instant case. In the case of First Nat. Bank v. Halliday, supra, only one of the two defendants appealed. The notice was served on the plaintiff as in the instant case. Mr. Justice BURNETT employed this language in announcing the decision of this court: "The conclusion is that there is a possibility that her interest will be affected by a modificaton of the decree according to the contention of the appealing son. She is therefore an adverse party within the meaning of the precedent cited, and the notice of appeal should have been served upon her as such." In the instant case the defendants, Bates and Raffety, are undoubtedly interested in maintaining the decree as rendered. The respondents cannot get any more favorable decree than the decree rendered in the Circuit Court. A reversal of the decree and remanding the suit for further proceedings would not be more favorable to respondents than the decree appealed from. The appellant has brought here the entire decree and if this court should find that competent evidence had been rejected, or for any cause that a complete trial of the issues had not been had, and should conclude that equity required *Page 91 the case to be remanded, it has the power to reverse the decree of the Circuit Court and remand the cause. Bates and Raffety should, therefore, have been served with the notice of appeal. The court is without jurisdiction to hear the appeal on the notice as given and served. If appellant had desired to limit the consideration of this court to the particular portion of the decree against the appellant, he should have given notice to that effect. Bates and Raffety were proper parties to the suit. They are not brought into this court. This court is precluded under Section 557, Or. L., from including them in any decision we might render. This court, therefore, might be prevented from rendering such a decree as we may determine equitable and just. We are thus limited by the notice of appeal under Section 557, Or. L. That limitation prevents jurisdiction of this court from attaching. The appeal will have to be dismissed because this court is without jurisdiction to hear and determine the suit. DISMISSED. REHEARING DENIED.