Western Land & Irrigation Co. v. Humfeld

COSHOW, J. The sole reason for the attempt to substitute the Western Irrigation Company for the plaintiff Western Land and Irrigation Company is that the former succeeded to all of the property of the latter pending the litigation. It will be kept in mind that the property of the Western Land and Irrigation Company was sold on a foreclosure decree pending the above-entitled suit. The Western Irrigation Company bought that property from the purchaser thereof at the foreclosure sale. The statute of this state does not require the substitution of a purchaser of the property involved in a litigation while that litigation is pending: Section 38, Or. L. In Burns v. Kennedy, 49 Or. 588 (90 Pac. 1102), pages 590 and 591 of the official report, we find this language: “ ‘No action shall abate * * by the transfer of any interest therein, if the cause of action * * continue.’ ” “This section was construed in Elliott v. Teal, 5 Sawy. 188 (Fed. Cas. No. 4389), decided in 1878, in which it was held that, where pendente lite plaintiff conveyed all his interest in the subject of the litigation to another, the action should not abate, but be continued in the name of the original plaintiff. The same ruling was made in French v. Edwards, Fed. Cas. No. 5,097, under the California statute, and in 1898, Judge Gilbert, in Dundee Mortgage Co. v. Hughes (C. C.), 89 Fed. 182, again construes this section to the same effect. In Merriam v. Victory Min. Co., 37 Or. 321, 329 (60 Pac. 997), it is suggested by Mr. Justice Bean that it is doubtful whether a transfer by plaintiff made pendente lite of his interest in the subject of the suit necessitates the substitution *60 of the transferee—citing Elliott v. Teal. And in Culver v. Randle, 45 Or. 491, 494 (78 Pac. 394), Mr. Chief Justice Moore cites Elliott v. Teal with approval, where the question arose as to such substitution after judgment for the purpose of appeal. See, also, Moss v. Shear, 30 Cal. 467, 475; Camarillo v. Fenlon, 49 Cal. 202. We consider, however, that the language of the statute (Section 38) is clear and decisive upon this question, and that the facts stated constitute no defense, and that the demurrer was properly sustained thereto;” Auto Dispatch Co. v. Cauldwell, 67 Or. 301 (135 Pac. 880). But waiving that question, we are of the opinion that the Circuit Court was without jurisdiction to render or enter the order of substitution relied upon by the defendant O. D. Teel. The proper procedure, for the substitution of the parties, is outlined in detail in White v. Johnson, 27 Or. 282, 286 (40 Pac. 511, 50 Am. St. Rep. 726). No person or corporation can involuntarily be made a party to a litigation unless duly served with summons, or its equivalent. We entertain no doubt at all of the good faith and intentions of the attorneys for defendant Teel. But the record fails to disclose any authority at all for W. GL Drowley and W. S. Levens, attorneys for Western Land and Irrigation Company, appearing or representing the Western Irrigation Company. The fact that the order of substitution was moved for by the attorneys for the plaintiff Western Land and Irrigation Company is not any evidence that those attorneys were authorized to represent the Western Irrigation Company. Both of the said attorneys, in their several affidavits, affirm that neither of them was authorized to represent the Western Irrigation Company or pretended so to do. It is not necessary that we inquire into the reason for their motion to make the substitution. The West- *61 em Irrigation Company could not be made a party to tbe pending litigation without being properly served as is clearly pointed out in White v. Johnson, above, unless that company voluntarily appeared, which it has not done. The learned attorneys for the defendant Teel, and the learned circuit judge assumed that the Western Irrigation Company authorized the attorneys for the Western Land and Irrigation Company to move for the substitution. The record does not support the contention of the defendant, Teel, that the attorneys Drowley and Levens assumed to represent the Western Irrigation Company. If in the opinion of the attorneys for any of the parties to that litigation the Western Irrigation Company was a necessary party, it should have been requested to become a party plaintiff. If it was unwilling to become a party plaintiff, the remedy of the parties was to make it a party defendant and cause summons to be issued and served upon it in the manner provided by statute. In no other way could the Western Irrigation Company be made a party to the proceeding. The notice attempted to be served upon the Western Irrigation Company by W. S. U’Ren, as an attorney for the defendant Teel, was not sufficient even if it had been served to have made the Western Irrigation Company a party plaintiff. The motion to dismiss the appeal in so far as the Western Irrigation Company is concerned is therefore allowed. Motion to Dismiss Allowed as to Western Land and Irrigation Co. Bean, J., took no part in the consideration of this ease.