Osborn v. Logus

On First Motion to Dismiss Appeal. Per Curiam. 1. This is a motion to dismiss an appeal. A decree having been rendered dismissing plaintiff’s complaint in a suit to foreclose a mechanic’s lien, wherein like liens of other claimants upon the same property were foreclosed, the plaintiff attempted to appeal by serving the notice thereof upon the owner of such property only. Appeals are taken by causing a notice to be served upon the adverse party, and filing the original, with proof of service indorsed [304] thereon, with the clerk: Hill’s Code, § 537. An adverse party is one whose interest in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the appeal: The Victorian, 24 Or. 121 (32 Pac. 1040). If the decree should be reversed, and one entered here foreclosing plaintiff’s alleged lien, the interests of the other lien claimants would necessarily be in conflict with such decree, in case the property sought to be charged with the lien was upon a sale thereof insufficient to pay the whole amount decreed against it: Hill’s Code, § 3677. In such case they would be compelled to share pro rata with the plaintiff, and hence the other lien claimants were or might thus become adverse parties. 2. But in order to show that the other claimants would not in fact be affected by such a decree, the appellant filed affidavits, and a copy of the decree with marginal indorsements thereon, from which it appears that the amounts awarded to tbe several lien claimants have been paid. The proofs, however, are silent as to when these payments were made, except as to one of them, the acknowledgment of which was entered on the margin of the decree after the notice of appeal was served. Jurisdiction must be determined from the conditions existing when the appeal was taken and could be acquired in this case only by service of the notice of appeal upon all the adverse parties: Hamilton v. Blair, 23 Or. 64 (31 Pac. 197); Moody v. Miller, 24 Or. 179 (33 Pac. 402); and plaintiff having failed to serve the other lien claimants with such no« tic© the appeal must be dismissed. Dismissed. Decided November 19, 1894 [38 Pac. 190.] On Second Motion to Dismiss Appeal. Per Curiam. A former appeal, or attempted appeal, in this case, having been dismissed for want of service upon all the adverse parties, the plaintiff has taken and perfected another appeal, which the defendant now moves to dismiss on the grounds (1) that Messrs. Holm and Brother, the contractors to whom plaintiff furnished the material for which the lien is' claimed, were not served with notice of the appeal; and (2) that plaintiff’s right to an appeal has been exhausted. 3. The contractors to whom plaintiff furnished the material referred to in the complaint, although named as defendants therein, were not served with summons and did not appear in the court below, nor have they been served with the notice of appeal. The contention for defendants is that they are adverse parties within the meaning of the statute. An adverse party is defined by this court to be one “whose interest in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the appeal”: The Victorian, 24 Or. 121 (32 Pac. 1040). Within this rule, the contractors are clearly not adverse parties to this appeal, indeed they are not parties to the decree appealed from at all, and cannot therefore be in any way affected by the modification or reversal thereof. 4. Where an appellant has taken and perfected an appeal his right is exhausted, and he cannot after306 wards take another in the same cause, but where he merely attempts to appeal but in consequence of some irregularity the appeal is not perfected the right to appeal still remains: McCarty v. Wintler, 17 Or. 391; Nestucca Wagon Road Company v. Landingham, 24 Or. 439. An appeal is taken by serving a notice thereof on the adverse party, and filing the original with proof of service indorsed thereon, and when, on account of a failure to comply with this provision of the statute, the former appeal was dismissed, it did not operate as an abandonment of the appeal, or affect the plaintiff’s right to take another. The motion to dismiss must therefore be overruled. Overruled. Decided December 23, 1895. [42 Pac. 997.]