Keady v. United Rys. Co.

Decided March 30, 1909. On Motion to Dismiss. [100 Pac. 658.] [327] Opinion by Mr. Chief Justice Moore. 1. This is a motion to dismiss an appeal on the ground that the notice thereof does not sufficiently identify the judgment attempted to be reviewed. The notice of appeal is as follows: “In the Circuit Court of the State of Oregon for the County of Multnomah. L. Y. Keady, Plaintiff, v. United Railways Company, Defendant. 1 B 1415. B 1610. “To L. Y. Keady, Above-Named Plaintiff, and to Martin L. Pipes,• Attorney for Plaintiff: “You will please take notice that the defendant in the above-entitled action hereby appeals to the Supreme Court of this State from the judgment made, rendered and entered in the above-entitled action on the 10th day of June, 1908, which said judgment is of record in jpurnal 173 of said circuit court at page 425 thereof in favor of the plaintiff in said action and against said defendant, and from the whole thereof. “Dated this 29th day of July, A. D. 1908. “Yours, &e., “A. C. Emmons, “W. M. Gregory, “W. D. Fenton, “Attorneys for Defendant.” It will be observed that the notice quoted does not specify the character of the judgment, whether for property recovered or for money awarded, and, since it is for the latter, it is argued by plaintiff’s counsel that the amount thereof is not designated. The statute prescribes the following requirements for a notice of appeal, to wit: “Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to [328] the Supreme or circuit court, as the case may be, from the judgment, order, or decree, or some specified part thereof.” Section 549, B. & C. Comp. An inspection of a notice of appeal ought to enable the court by fair construction or reasonable intendment, and without a resort to any other evidence than that which the transcript on appeal affords, to determine that the appeal is taken from the judgment or decree in a particular case. Neppach v. Jordan, 13 Or. 246 (10 Pac. 341) ; Crawford v. Wist, 26 Or. 596 (39 Pac., 218). The transcript in this cause does not contain any memoranda relating to the volume or page of the journal where the judgment complained of is recorded. Whether or not the clerk of the trial court can, by a supplemental certificate, remedy the defect in this particular, is unnecessary to inquire, for we believe the notice of appeal, when compared with the record, is sufficient without such further attestation, and all reference to the book and page indicated will be disregarded as surplusage. Summers v. Geer, 50 Or. 249 (85 Pac. 513: 93 Pac. 133). 2. The undertaking on appeal may be examined in order to identify the judgment or decree sought to be reviewed. Moorhouse v. Donica, 13 Or. 435 (11 Pac. 71) ; Salem Traction Co. v. Anson, 41 Or. 562 (67 Pac. 1015: 69 Pac. 675). 3. The undertaking on appeal herein contains a clause as follows: “Whereas, the defendant in the above-entitled action appeals to the Supreme Court of the St 'te of Oregon, from a judgment made and entered against said defendant in said action in the said circuit court in favor of the plaintiff in said action, on the 10th day of June, A. D. 1908, for $24,583.23 and $384.35, costs of suit, now, therefore,” etc. A certified copy of the judgment roll transmitted to this court shows that on November 8, 1906, and Decern [329] ber 29th of that year the plaintiff herein commenced actions in the circuit court for Multnomah County against the defendant herein, and sets forth, inter alia, a journal entry, made June 4, 1908, as follows: “Now at this time this cause coming regularly on for trial, * * by consent of the attorneys in open court for the respective parties to this action, it is ordered that the two cases, each entitled L. Y. Keady v. United Railways Co., case No. B 1415 and B 1610 be and the same are hereby consolidated.” A verdict in such court and cause having thereon the numbers so indicated was returned, and is as follows: “We, the jury in the above-entitled cases, find for the plaintiff in the sum of $22,703.33, with interest at 6 per cent per annum on $13,270 from January 31, 1906.” Based thereon a judgment was rendered, which, so far as material herein, is as follows: “Now therefore it is ordered and adjudged that the plaintiff have and recover of and from the defendant the sum of $22,703.33, together with interest on the sum of $13,270 at the rate of 6 per cent per annum from January 31, 1906, to wit: the sum of $1,879.90, interest, and for his costs and disbursements, taxed at $-.” The notice of appeal, aided as it is by the undertaking therefor, and construed with that part of the transcript above set forth, contains, in our opinion, such a description of the judgment sought to be reviewed as specifically to identify it; and the process employed is sufficient to confer jurisdiction of the cause. This being so, the motion herein is denied. Motion Denied. Statement by Mr. Justice Slater. This is an action by L. Y. Keady against the United Kailways Company to recover money upon a contract. The complaint contains 25 separate causes of action, all of which, except the last, are upon claims assigned to plaintiff. Each of the 24 assigned causes of action first set forth are identical as to the character of the contract upon which the right to recover is based. It is alleged, in effect, that at the time of the making of the contract sued upon, the Oregon Traction Company was a corporation, duly organized and existing under the laws of this State for the purpose of owning, purchasing, constructing, and operating railways herein and in the city of Portland; that such corporation owned and was in possession of valuable franchises from the State of Oregon and the city of Portland of rights of way and easements for the construction and operation of railways, and of rails' and other property, all of a value greater than $200,000; that the defendant corporation, desiring to purchase of the Oregon Traction Company all of its property, including rights of way and franchises, proposed to the several stockholders thereof that if they would consent to the sale the defendant would, in consideration of such consent, pay to such several stockholders the amount that each of them had paid in cash upon his subscription to the stock of the corporation; that, in consideration of the offer so made, and relying thereon, at a duly called meeting of the stockholders of the Oregon Traction Company held on January 31, 1906, there was passed by unanimous consent of all the stockholders a resolution, authorizing the sale; that after-wards, on March 15th, in pursuance of such consent, the defendant purchased at public sale all of the corporate property of the Oregon Traction Company, receiving and accepting from it a proper conveyance thereof, and entered into possession of the property, which it now owns and holdsthat each of plaintiff’s assignors, who were stockholders of the Oregon Traction Company, has paid on his stock to the company the amount sought to be recovered in each particular cause of action; and that in consideration of his consent so given to the sale defendant promised and agreed to and with such stockholder to pay said amount, which it has failed to do. To this is added an averment of an assignment of each of the several claims to plaintiff before the commencement of the action.