Northwestern Clearance Co. v. Jennings

BEAN, J. There are numerous defendants in this suit. Fifteen defendants, parties to the judgment, appeal. A notice of appeal was filed with proof of service indorsed thereon, consisting of two affidavits of mailing copies of the notice of appeal to certain of the adverse parties to the judgment, and two acceptances of service of the notice of appeal signed by several of the attorneys for ■ certain of the parties. Upon a motion to dismiss the appeal for the reason among other things that the [294] notice of appeal did not have indorsed thereon proof of service as required by law the appellants by their counsel apply for leave to amend the return of service of notice of appeal so as to conform to Section 540, Or. L., by showing that the person upon whom the service was made, and the persons for whom the service was made, resided in different places between which there is a communication by mail. The application to amend comes within the rule found in Mitchell v. Coach, 83 Or. 45, 47 (153 Pac. 478, 162 Pac. 1058), following the rule declared in Barbre v. Goodale, 28 Or. 465, 468 (38 Pac. 67, 43 Pac. 378). The appellants will therefore be allowed ten days to amend the return of service of the notice of appeal. Further objection to the service of notice of appeal is made, for the reason that E. M. Clark, one of the attorneys for certain of the defendants and respondents in the trial court, accepted service of notice of appeal for such respondents and was also attorney for other defendants who are appellants, and is one of the attorneys for the appellants herein. The suit appears to involve the rights or claims of various heirs of H. D. Winters, deceased. Some of these defendants, claiming to be heirs, employed the same attorney in the Circuit Court. While it might be possible for the rights of such heirs to be affected and their share in the estate diminished by a decree declaring all of such claimants to be heirs of the deceased, yet if such persons desire to pool their issues and thereby reduce expenses of the suit by employing the same attorney to represent various persons claiming to be heirs, it is perfectly right that they should do so; and we see no objection to the [295] same attorney representing several defendants claiming to be heirs of the same decedent in the absence of any objection on the part of any of the heirs. A decree was rendered in the Circuit Court recognizing a part of the defendants represented by such attorney as the heirs of H. D. Winters, deceased, and denying the heirship of other defendants represented . by the same attorney. Therefore the attorney of record for the successful respondents was authorized to accept service for such respondents. The- objection to such acceptance of service of notice of appeal is untenable. The acceptance of service of the notice of appeal upon the plaintiff and several defendants appears to be signed by five attorneys, part of whom were attorneys for plaintiff, and a part of them were attorneys for different defendants without designating the respondents for whom the acceptance was made by each of the attorneys. This it seems was in order to abbreviate the clerical work of listing the names of respondents whom each attorney represented, leaving that pleasure for this court. An affidavit is filed in this court naming several of the attorneys and the parties for whom they appeared and making reference to “the several appearances of the parties and the record of this cause in the Circuit Court for Multnomah County.” Reference to the transcript of the testimony discloses that at the time of the taking of the testimony the defendants appeared by several attorneys named “of counsel for certain of the defendants as noted in the pleadings in said cause.” The pleadings in the cause have not been filed in this court, so as to enable the court to ascertain for which respondents the different attorneys appeared. It is not presumed [296] that the attorneys' for plaintiff and respondent were also attorneys for defendants and respondents for whom the acceptance of service of notice of appeal was signed. As to the record of the acceptance of service of notice of appeal by several of the attorneys for defendants and respondents, contained in the transcript of record, which is claimed by the above-named respondents to be erroneous, it is a well-established rule that this court will consider the certified transcript of the record of the proceedings in the trial court as correct. If there are any errors- in such record in the Circuit Court the corrections should be made in that court. We understand, however, that the objection made goes to the acceptance of service above referred to by the attorney of record, E. M. Clark. It is objected that: “Samuel Griffin was the only attorney of record for Respondents Julia Prances Mathews, Mary J. Kinchloe and Mary M. Brown and said attorney was served with Notice of Appeal by L. P. Hewitt, attorney for appellant who was not a person authorized by law to make such service.” Section 539, Or. L., directs that service of notice or deposit thereof in the postoffice, when served by mail,, may be made by any person other than the party himself. Counsel for the motion cite and rely upon the cases of Williams v. Schmidt, 14 Or. 470, 471 (13 Pac. 305), and Muckle v. Columbia County, 56 Or. 146 (108 Pac. 120). In the latter cases the service of notice of appeal was made by a party to the action, and therefore defective: See Schultz v. Walrad, 92 Or. 315 (179 Pac. 904, 991). L. P. Hewitt was not a party to the present suit and was qualified to make the deposit of the notice of appeal in the postoffice. The objection is not well taken. [297] The motion to dismiss will be denied subject to renewal upon further specific objections within five days after the amended return of service of notice of appeal is filed herein. Defendants and respondents, Pauline A. Jennings, Polly Z. Forbes, Elias Duncan, Thomas J. Winters, H. L. Ganoe and F. W. Ganoe, request a rule upon the clerk of the Circuit Court to send to this court a photographic copy of the record of the genealogy of H. D. Winters, deceased, as attached to the pleadings of F. W. Ganoe and used in the trial of this case in the lower court; and also the judgment-roll in the ease of State of Oregon v. Agnes Butts, as Administratrix of the Estate of Henry D. Winters, Deceased, and especially the pleadings in said case. The respondents will be allowed to file the original pleadings in this case with the photographic copy named attached, and also the judgment-roll in the case of State of Oregon v. Agnes Butts, as Administratrix, or certified copies of such portions of the judgment-roll as the above-named respondents may desire. Burnett, C. J., and Brown and Harris, JJ., concur.