Everding & Farrell v. Toft

Opinion by Mr. Chief Justice Moore. This is a motion to dismiss an appeal. In order to understand the question involved, it is necessary to state the substance of the facts upon which a solution of the inquiry depends: The defendant J. L. Hoffman on August 7, 1912, executed to the defendant the Colombian Timber Company, a corporation, his promissory note for $5,000, payable in one year, with interest at the rate of 8 per [4] cent per annum. Prior to the maturity of the instrument the defendants John F. Toft, John F. Shorey and the payee in due course indorsed the note for value, and thereupon the plaintiff Everding & Farrell, a corporation, became the owner thereof and instituted an action to recover the amount due thereon; the complaint being in the usual form. Toft, separately answering, denied some of the averments of the initiatory pleading, and for a further defense alleged that he was induced to indorse the note by the fraudulent representations of an agent of the payee, setting forth the statements asserted to be false; that before the plaintiff obtained title to the instrument one of its officers, naming him, was informed by Toft that there was something wrong about the making and indorsing of the note, and advised not to purchase it expecting this defendant to pay the same. The statements of new ■matter in this answer were denied in the reply. ■ The defendant Hoffman, separately answering, admitted most of the averments of the complaint, and further alleged that he was induced to execute the note to evidence the purchase of 5,000 shares of the capital stock of the defendant corporation, which its agent fraudulently represented was valuable, but in fact was valueless, and that prior to plaintiff’s purchase of the written promise its officer was informed of the invalidity thereof, by reason of false statements, setting them out. A reply put in issue the averments of new matter in this answer. The defendants, the Colombian Timber Company and John F. Shorey, did not appear or answer. The 'cause being tried on the issues joined, the plaintiff secured a judgment against Toft for the amount of the note, while the defendant Hoffman obtained a judgment against the plaintiff for his costs and disbursé [5] roents. The plaintiff’s attorneys served upon the defendants Toft and Hoffman a notice of appeal, which, omitting the title and the signatures, is as follows: “You, and each of you, will please take notice that an appeal is taken by Everding & Farrell, the above-named plaintiff, to the Supreme Court of the State of Oregon from a part of that certain judgment made and rendered in the Circuit Court of the State of Oregon for the county of Multnomah on the 8th day of February, 1915, in that certain cause entitled ‘In the Circuit Court of the State of Oregon for the County of Multnomah. Everding & Farrell, Plaintiff, v. John F. Toft, Colombian Timber Company, a Corporation, J. L. Hoffman, and Jno. F. Shorey, Defendants, D. 7423.’ The part of the judgment from which the ap-. peal is taken to the Supreme Court of the State of Oregon is specified in words and figures as follows, to wit: ‘It is further ordered and adjudged that the plaintiff take nothing herein of or from the defendant' J. L. Hoffman, and that the defendant J. L. Hoffman recover of and from the plaintiff his costs and disbursements herein, and that execution issue therefor.’ ” The transcript having been filed in this court, counsel for the defendant Hoffman have interposed a. motion to dismiss the appeal, on the grounds that a review of a part of the judgment only cannot legally be upheld, and that an execution on the judgment against Toft has been issued whereby some of his property has been sold and the proceeds thereof paid over to plaintiff. [6] In the case at bar it will be remembered that distinct issues were made by the separate answers of Toft and Hoffman. Based on these issues, judgments were rendered, which final determinations, as between Toft and Hoffman, were as well defined as though they had been given in separate actions; and, this being so, the plaintiff could appeal from that part of the judgment specified in its notice. No appeal having been taken by the plaintiff from the judgment rendered against Toft, an estoppel cannot arise from any proceedings undertaken to enforce the determination as against him. [5] Any party to a judgment or decree that was not given or rendered by confession or for want of an answer may appeal therefrom, “or some specified part thereof”: Sections 549, 550, L. O. L. In construing these sections of the statute it has been held that a. party will not be permitted to maintain separate ap-, [6] peals from parts of a judgment or decree. An apparent exception to this rule is recognized whereby an appeal will lie from a part of a judgment or decree, when an issue distinct, entire and complete has been formed between some of the parties, and upon which issue a final judgment or decree has been given, affecting only the interests and rights of the parties to that particular issue: Bush v. Mitchell, 28 Or. 92 (41 Pac. 155). The motion must therefore be denied; and it is so ordered. Motion to Dismiss Denied.