Prudential Loan Co. v. Smith

KELLY, J. On October 13, 1926, a decree was entered herein declaring a certain instrument in the form of a deed to be a mortgage and foreclosing the same. George W. Joseph, one of the plaintiffs herein, was the grantee in said instrument and defendant A. C. Smith was the grantor. It is alleged in plaintiffs’ complaint that said instrument was intended and agreed by the parties therein to be and operate simply as a mortgage of the premises described therein and as security for the payment of the claim alleged to have been transferred to the plaintiff Prudential Loan Company. In the answer of defendants, Meier & Frank Company and Jeanette Meier, it is alleged that said instrument, while on its face purporting to be a deed absolute, was in truth and in fact executed and delivered to secure the payment of the respective notes alleged to have been executed by said defendant Smith and to be held by said defendants, Meier & Frank Company and Jeanette Meier, and the claim of the Prudential Loan Company *29 and certain other creditors of defendant A. C. Smith; and plaintiff George W. Joseph, took title to said property and held and now holds the same as trustee to secure the payment of certain indebtedness of said A. C. Smith including the notes described in said answers and the promissory note described in plaintiffs’ amended complaint. Defendant A. C. Smith challenges the validity of said decree, which awarded judgments to said Prudential Loan Company, and to said Meier & Frank Company and the executors of the last will and testament of said Jeanette Meier and to the other defendants, and declares said deed to be a mortgage intended to secure the payment of the claims of certain of said defendants, and directs its foreclosure and the application of the proceeds of the sale of the real property described in said instrument to the payment of said judgments. The ground upon which said decree is thus questioned is that there was no service of summons upon said defendant Smith after the filing of an amended complaint, nor was said amended complaint served upon him. Moreover, the validity of each of the ■ judgments entered in said decree is also challenged upon the ground that the court was without jurisdiction to enter them because no service was made upon Smith of the answer and cross-complaints upon which two of said judgments are based, and no answer or cross-complaint was filed or served in support of the other two of said judgments. Thus it will be seen that George W. Joseph was a necessary party to this proceeding: 2 Jones on Mortgages (7th Ed.), p. 1078, section 1383, and authorities cited under note 29. The character, terms and extent of his trusteeship are directly involved. It is part of the history of this state that George W. Joseph died on the *30 16th day of June, 1930. There has been no substitution of his successor or representative as a party plaintiff. There could be no service upon him of a notice of appeal. It is obvious that his interest could be adversely affected by an order vacating and setting aside said decree. For that reason in order to give this court jurisdiction, his successor or representative should have been substituted and served with a notice of appeal: Adams v. Kennard, 122 Or. 84, 97 (222 P. 1092, 227 P. 738, 253 P. 1048); Oliver v. Jordan Valley L. & C. Co., 143 Or. 249, 254 (16 P. (2d) 17, 22 P. (2d) 206); Vaughn v. Kolb, 148 Or. 491 (37 P. (2d) 435). This court is without jurisdiction herein: Oregon Auto-Dispatch v. Cadwell, 67 Or. 301 (135 P. 880); Linster v. East Lake Health Resort, 143 Or. 63 (18 P. (2d) 592); 3 C. J. Subject, Appeal and Error, p. 1020, § 974. As to the devolution of trusteeship upon death of a sole trustee, see 65 C. J. Subject, Trusts, p. 635, section 492, and p. 675, section 537. Moreover, there is nothing in the record showing that defendants Hanorah Murphy and Mrs. M. H. Morey were served with the notice of appeal herein or that they or either of them accepted, acknowledged or admitted service thereof. In fact, the notice of appeal is not addressed to defendant Morey at all. The order sought by defendant Smith would adversely affect their interests because it would vacate judgments rendered in their favor, respectively, against said Smith and set aside a decree declaring that the deed from Smith to Joseph was intended as a mortgage to secure their claims against Smith. The decree sought to be vacated recites that both of said defendants, Murphy and Morey, appeared by Mr. John C. Yeatch, their attorney. The notice of appeal is addressed to defendant, Hanorah *31 Murphy, and to Robert J. O’Neil, her attorney. In the trial court Mr. O’Neil accepted service of the motion to vacate the decree in suit. It would seem, therefore, that both of these defendants are adverse parties, who have appeared in this suit, and that it was necessary to serve notice of appeal upon them or to secure their admission of service thereof in order to give this court jurisdiction : Section 7-503, Oregon Code 1930. For the reasons above stated, this appeal is dismissed.