Arnold v. Smith

73 P. 336, 43 Or. 595, 1904 Ore. LEXIS 141

• Court: Oregon Supreme Court
• Decided: February 1, 1904
• Status: Published

Opinions

On Motion to Dismiss the Appeal.

Mr. Justice Wolverton

delivered, the opinion.

This is a motion to dismiss the appeal from the decree of the circuit court reversing an order and decree of the county court of Multnomah County, and remanding the cause, with directions to grant an order of sale of the real property belonging to the estate of the deceased, forthe purpose of paying a certain alleged claim against the estate and the expenses of administration. The deceased died testate in the State of Washington, leaving the following-named heirs: His widow, Annie J. Davis, nee Smith, and a son and daughter, named respectively, Albert U. and Ethel M. Smith, to the two latter of whom he devised the land which it is now sought to have sold by order of the probate court. The widow joined with the two children in their objections to the petition for the sale, and, being successful, the petitioner, F. K. Arnold, appealed to the circuit court, making all the objectors parties to the appeal, and succeeded in obtaining the decree from which this appeal is prosecuted. The objectors have all joined in the notice of appeal to this court, but the widow did not join in the undertaking, and the motion to dismiss is based upon the grounds (1) that there is no sufficient undertaking, and (2) that Annie J. Davis is an adverse party, but is not made a party to the appeal.

1. It is difficult to see how Mrs. Davis can be affected by a reversal' of the decree appealed from, and, if she cannot, she is not an adverse party to the appeal. She is a joint maker, with the decedent, of the note, it is true ; but the proceeding is not against her as such maker, but in rem, to subject the realty of the estate of the decedent to its payment, and no decree can be given against her in any event. It is said that, if the real estate is sold, and the proceeds applied to the payment of the demand, as required by the decree of the circuit court, it would lessen her liability, and that, therefore, a reversal will affect her adversely. Her purpose from the beginning was to defeat the sale, which is inconsistent with the idea that she would get hurt by a reversal; but, whatever part she has taken, the result of the proceedings can only affect her incidentally, and because she is a comaker of the note affords in itself no ground for making her a party to the proceedings in the first instance, and, not being a proper or necessary party thereto, she cannot be accounted an adverse party to any appeal that may be prosecuted.

2. It is further suggested that she has a dower estate in the realty sought to be sold, and for that reason she is an adverse party. That she has a dower may be assumed, unless cut off by the will or some other way ; but, concede it, the order of the court cannot affect it: Whiteaker v. Belt, 25 Or. 490 (36 Pac. 534). If she is without dower, then she has no interest whatever to be affected ; so that, in any event, she is neither a proper, necessary, or adverse party to the proceedings. This being so, the undertaking is regular, and the motion will be denied.

Motion Overruled.