Alliance Trust Co. v. O'Brien

50 P. 801, 32 Or. 333, 1897 Ore. LEXIS 119

Opinions

On Motion to Dismiss Appeal.

[50 Pac. 801.]

Per Curriam.

This suit was brought to foreclose a mortgage executed by the defendants, John A. and Emily N. O’Brien, to the Alliance Trust Company, Limited, on certain real property in the City of Portland, to secure the payment of $1,400 and interest. The defendants O’Brien, being nonresidents of the state, were served with summons by publication, but made default. The defendants Petrain answered, setting up title and possession in Annie Petrain at the time of the execution of the mortgage and ever since, and that the defendant Emily H. O’Brien held the legal title thereof at that time in trust for her, and that plaintiff had knowledge of these facts. A reply was filed, and, upon the issues joined the court found that the property in question in fact belonged to the defendant Annie Petrain, as alleged, but that she was estopped by her conduct from questioning the right of the O’Briens to mortgage the same to the plaintiff, and thereupon entered a decree foreclosing the mortgage and ordering the property sold. From this decree the Petrains appeal, but served no notice thereof upon the O’Briens. The plaintiff now moves to dismiss the appeal, claiming that the O’Briens are adverse parties to the appellant and should have been served with notice.

1. It is no longer an open question in this state that any party to a litigation whose interest in relation to the decree or judgment appealed from is in confiict with the modification or reversal sought is an adverse party, and must be served with a notice of appeal: Hamilton v. Blair, 23 Or. 64 (31 Pac. 197); The Victorian, 24 Or. 121 (32 Pac. 1040); Moody v. Miller, 24 Or. 179 (33 Pac. 402); Jackson County v. Bloomer, 28 Or. 117 (41 Pac. 930). But the O’Briens do not come within this rule. They have no interest in the decree ■appealed from in conflict with a reversal or modification thereof. There is no valid personal judgment against them because they'were served by publication, and the only effect of the decree is to foreclose their interest, if any, in the mortgaged premises, and the reversal of such decree could not affect them injuriously. It is claimed that they are adverse parties because a reversal would release the mortgaged premises from sale in satisfaction of their debt and leave its burden upon them. It is possible such might be the result if they are still liable upon their note, but, if so, it would not follow as the direct result of any change or modification of the decree in question which could be made on this appeal; and it is from the interest a party has in the particular decree or judgment appealed from that the question of adverse parties must be determined, and not from some possible consequence which may flow therefrom. The motion to dismiss is therefore overruled.

Motion Overruled.

Decided January 10, 1898.