Davis v. First Nat. Bank

Opinion Per Curiam. 1. The First National Bank of Albany, Oregon, commenced an action against W. H. Davis and Worth Huston to recover the amount of their promissory note. They answered admitting the allegations of the complaint and as plaintiffs also filed a cross-bill in equity, making as parties defendant Alfred C. Schmitt, Linnhaven Orchard Company, a corporation, E. C. Roberts, Chas. H. Wieder, Geo. M. Crowell, Owen Bean, F. J. Fletcher and J. M. Hawkins, admitting the execution of the note, but alleging it was in fact the note of the Linnhaven Orchard Company and that the makers and the defendants who were made parties to the suit were sureties for that company. The trial court rendered a decree granting the relief prayed for in the cross-bill and the First National Bank and Alfred C. Schmitt appealed, but they did not cause the notice to be served upon the defendants Wieder, Crowell or Hawkins. The plaintiffs ’ counsel, contending that the parties who were not served with the notice are adverse, move to dismiss the appeal for that reason. By the decree Alfred C. Schmitt and the other parties who were made defendants in the cross-bill were held to be jointly and severally liable for the payment of the promissory note which was executed by the [477] plaintiffs to the bank. A reversal or modification of that decree would be an advantage to the parties who were not served with the notice of the appeal, and for that reason they are not adverse: Lane v. Wentworth, 69 Or. 242 (133 Pac. 348, 138 Pac. 468); United States National Bank v. Shefler, 77 Or. 579 (143 Pac. 51, 152 Pac. 234). The motion to dismiss the appeal is denied. Motion Denied.