Decided 10 January, 1898.
On Motion to Dismiss Appeal.
[51 Pac. 619.]
Per Curiam.
1. This is a motion to dismiss an appeal. The transcript shows that plaintiff commenced this suit to foreclose a lien upon certain real property of the defendant M. J. Delahunt, for material furnished to the defendant John Chandler, who, by virtue of a contract with Delahunt, had charge of the construction of a house [404]*404for the latter on said premises. Chandler was made a party, and personally served with summons, but made default, and, the cause being tried on the issues raised by other parties, the court dismissed the suit, and plaintiff appeals, but did not serve Chandler with notice thereof. The question presented for consideration is whether he is an “adverse party” within the meaning of the statute, upon whom the notice of appeal must be served : Hill’s Ann Laws, § 537. The term “adverse party” has been held to mean one whose interest in relation to the decree complained of is in conflict with the modification or reversal sought by the appeal: Lillienthal v. Caravita, 15 Or. 339 (15 Pac. 280); Hamilton v. Blair, 23 Or. 64 (31 Pac. 197); The Victorian, 24 Or. 121 (41 Am. St. Rep. 838); Moody v. Miller, 24 Or. 179 (33 Pac. 402); Jackson County v. Bloomer, 28 Or. 110 (41 Pac. 930). The statute makes every contractor having charge of the construction of any building the agent of the owner, for the purpose of binding the latter for the value of material furnished to be used in, or labor performed upon, such building, at the request of the former : Hill’s Ann. Laws, § 3669. The contract is therefore entered into between the persons furnishing the materials or performing the labor and the owner, and while, perhaps, the contractor may have brought them together, he is not a necessary party to a suit to foreclose a mechanic’s lien, unless a personal decree is sought against him by the owner: Osborn v. Logus, 28 Or. 303 (37 Pac. 456, 38 Pac. 190, and 42 Pac. 997). If the owner has settled with the contractor in full, he shall be entitled to. recover from the latter any payment in excess of the contract price he may be compelled to make in discharging liens placed upon his property for which the contractor was originally the party liable : Hill’s Ann. Laws, § 3679. The contractor, in such case, might be a necessary party; but, before the court could [405]*405render any decree against him, the owner should allege in his answer such facts as would entitle him to the relief provided for in the statute. This he has not done in the case at bar, and hence Chandler is not an adverse or necessary party to the appeal, and, such being the case,, the motion is denied. Motion Denied.
For appellant there was a brief over the name of Dell Stuart, with an oral argument by Mr. Stuart and Mr. Lionel R. Webster.
For the Alliance Trust Company there was an oral argument by Messrs. Wm. D. Fenton and Earl G. Bronaugh, Jr., with a brief to this effect: Free access — add to your briefcase to read the full text and ask questions with AI