Neuberger v. Boyce

Opinion by Mr. Chief Justice Bean. The plaintiffs move to dismiss the appeal on the ground that service of notice of appeal on the attorney of record of the adverse party who does not reside in the county where the action or suit was tried is void, although it may in fact be made in such county.' It has repeatedly been held, and may now be regarded as settled, that under section 531 of Hill’s Code service of a notice of appeal may be made either upon a party or his attorney of record, even if the attorney resides in the county where [461] the trial was had, although this is a very broad construction of the statute, which would seem to require that when a party has a resident attorney service shall be made upon him, and not otherwise: Butler v. Smith, 20 Or. 126 (25 Pac. 381). But we are unwilling to carry the doctrine, to the extent contended for by the plaintiffs by holding that the section referred to, which provides that when a party has an attorney residing in a county where the action or suit is pending service of notices shall be made upon him, and not the party, requires that in all other cases such service shall be made upon the party, and not the attorney. Such a doctrine would be extremely inconvenient, often defeat the ends of justice, and would be a technical construction of the statute, unwarranted either by the demands of justice or established practice. An attorney stands for and represents his client, and, in the absence of a statute providing otherwise, service of notice of all interlocutory motions or proceedings arising in the course of an action or suit, including notices of appeal, may be made upon him with like effect as if upon the party himself: 2 Ency. of Pleading and Practice, 222; Wade on Notice, §§ 109 and 1321; Tripp v. Santa Rosa Street Railway Company, 144 U. S. 246 (12 Sup. Ct. 655); Tripp v. DeBow, 5 How. Pr. 114; United States v. Curry, 47 U. S. (6 How.), 106; Welton v. Garibardi, 6 Cal. 245. Indeed, some of the authorities referred to seem to indicate that such service must be made upon the attorney alone, but the better rule no doubt is that it may be made upon either the party [462] or Ms attorney. Now, the only change or modification of this rale to be found in our statute is the provision of section 531 of the Code, that if the attorney resides in the county where the action is pending, service must be made upon him, and not otherwise. But it does not provide or attempt to provide that service shall not be made in such county upon a nonresident attorney, and, in the absence of such a provision, we are of the opinion that service of a notice of appeal upon the attorney of record, made in the county where the trial was had, is good and valid, although he does not reside there; and the motion to dismiss must be overruled. Upon the merits little need be said. Counsel for plaintiffs have not seen fit to file a brief on the merits, or argue the case orally, but nevertheless we have carefully examined the record; and are clear that the decree cannot be sustained, either upon the law or facts. There is not a scintilla of evidence showing or even tending to show that Haines was guilty of any fraud or misconduct in the matter, or that he knew or had reason to suspect that Boyce contemplated a fraudulent assignment, but, on the contrary, the evidence shows beyond doubt that he acted in the utmost good faith. He knew nothing about Boyce’s financial condition, or that he contemplated making an assignment, until a day or two before it was made, when Boyce, at the suggestion of his attorney, requested Mm to act as assignee. This he declined to do until he could be further advised in the matter. After advising himself as to the duties and [463] responsibilities of an assignee, and the probable length of time it would take to close up the estate, he consented to act, the assignment was made, and all the property of Boyce, so far as he knew or had reason to believe, turned over to him to be distributed among the creditors as by law provided. But, notwithstanding all this, the decree of the court below is against him personally for the full value of the property assigned, without either allegation or evidence. to sustain it. The suit, although originally begun as a creditor’s bill to uncover property alleged to have been fraudulently transferred, seems during its progress to have been transformed by some legerdemain into an ordinary action of replevin, prosecuted by the plaintiffs against Haines alone, and resulted in a judgment against him in favor of the sheriff of Harney County for the recovery of the possession of certain personal property, or, in case a return thereof could not be had, a judgment in favor of the plaintiffs in this suit for its value, being more than double the amount of their demand against Boyce. It is but just, however, to the court below to say that the form of the decree as entered was never contemplated by it. Its conclusion from the evidence was that the assignment from Boyce to Haines was fraudulent and void as to the plaintiffs, and should be set aside as to them, and the property subjected to seizure uhder their attachment. But in this we think the court was in error. The assignment was made for the benefit of all Boyce’s creditors, and transferred all his property to Haines. [464] whether included in the inventory or not, (Sabin v. Lebenbaum, 26 Or. 420, 38 Pac. 434,) and it is difficult to perceive how it can be declared fraudulent as to general creditors when it will operate to distribute his property equally among them all. The plaintiff had at the time of the assignment no superior rights or equities over any of the other creditors, and should not be allowed to absorb the estate to the exclusion of others equally meritorious with them on mere suspicion • or conjecture as to the motives of Boyce in making the assignment, or because of his misrepresentations as to his financial condition on the faith of which they extended him credit. The general assignment law is intended as an easy and convenient way by which an insolvent debtor may make an equitable distribution of his property among his creditors, and an assignment made thereunder should not be set aside as fraudulent unless the evidence clearly shows it to have been made with that intent. The decree of the court below will be reversed, and the complaint dismissed. Reversed,