Commercial National Bank v. Portland

Mr. Chief Justice Wolverton delivered the opinion. 1. This is a motion to dismiss the appeal. It appears that Terry & Dill, two of the defendants, joined with other defendants in the notice thereof, and it is now contended that, having suffered the decree to be taken against them for want of an answer, they cannot prosecute an appeal therefrom, and that, such being the case, it ought to be dismissed as to them. Nevertheless, it is further contended that they are necessary parties to the determination of the cause, without the presence of whom this court is powerless to proceed, and, therefore, that the appeal should be dismissed as to all parties : in other words, that because Terry & Dill are here as appellants, and not as respondents, the court should refuse to take cognizance of the cause. The reasoning is refined and quite technical, but it overlooks the pivotal conditions attending the appeal. Several defendants were united as coparties to the suit, among whom were F. E. Beach & Company, and Terry & Dill. The plaintiff was an adversary party from the inception of the proceeding, and by the adjudication, as shown by the decree, F. E. Beach & Company became also an adversary party to the other coparties defendant. The statute requires that the party appealing shall serve the adverse party, and this is sufficient to vest the appellate court with jurisdiction in the premises. We are not aware of any holding that it is necessary to serve a coparty with notice of the appeal where he is willing to join therein as appellant. Terry [35] & Dill may have lost their right of appeal by their default, but that fact, and the further fact that they are not adversary parties to the City of Portland and other co-parties defendant, while they might be otherwise interested in the decree appealed from, ought not to deprive the City of Portland and other defendants of their right of appeal. If such was the law, all parties to the proceeding, except perhaps P. E. Beach & Company, would be without the right of appeal, simply because Terry & Dill have suffered default. The complaint shows that the defendant Dill was the original contractor for the improvement of Umatilla Avenue in the City of Sell wood, later incorporated with the City of Portland; that Terry & Dill were partners, and that plaintiff’s assignor furnished them a large amount of lumber and materials with which to make such improvement, for which they became largely indebted ; that to secure such indebtedness they gave plaintiff’s assignor an order upon the City of Sellwood for the delivery of warrants issued upon the fund provided for such improvement, and it is claimed that plaintiff thereby acquired an equitable assignment of 'a sufficient amount of such fund to satisfy its demand. A part of plaintiff’s claim had been paid by warrants drawn -by the city, and it prays a decree against the city and Terry & Dill for the balance due. The decree went against the city, but not against Terry & Dill, and yet they have no decree of dismissal, or for costs in their favor. That the plaintiff is an adverse party to the city is plain. Terry & Dill were adverse parties to the plaintiff from the inception of the suit, and coparties with the defendant the City of Portland, and, unless the decree changes the relationship, they are still adverse to the one and coparties with the other. But Terry & Dill have no judgment or decree in their favor and against [36] the City of Portland, and their condition could not be changed to their detriment by a modification or reversal of the decree at the instance of the city, and hence are not made adversary parties to the city by the decree. As to what might be the ultimate result of the litigation touching their interest, the court is not permitted to speculate. It is sufficient to know that a reversal or modification of the decree cannot affect them injuriously : Alliance Trust Co. v. O’Brien, 32 Or. 333 (50 Pac. 801). Terry & Dill were properly joined as appellants, and the motion to dismiss will therefore be overruled. Motion Overruled.