D'Arcy v. Sanford

159 P. 567, 81 Or. 323, 1916 Ore. LEXIS 270

• Court: Oregon Supreme Court
• Decided: August 1, 1916
• Status: Published

Opinion

Mr. Justice Harris

delivered the opinion of the court.

It appears from an affidavit filed on behalf of the appellant that notice of appeal was not served ‘ ‘ on any party other than the plaintiff, for the reason that defendant R. S. Sheridan had, in effect, never appeared, and the answer of the defendant T. R. Sheridan shows that he was not adverse to the defendant S. A. Sanford.” The appellant claims that R. S. Sheridan did not in fact appear in the suit, and that although the records originally made in the Circuit Court recite his appearance, nevertheless that tribunal had the power at any time to correct the recitals so that they would speak the truth and say that R. S. Sheridan did not appear. It will not be necessary, however, to determine whether the nisi prius court could make the correction after an appeal.

1, 2. T. R. Sheridan appeared in the suit by filing a demurrer and then an answer. , Th¿ decree appealed from prevents the successor of the bank from recovering on the note. The pleadings admit a partnership between D ’Arcy and the two Sheridans. If the decree should be reversed by this court, and it should be ruled here that Sanford could recover from D ’Arcy and compel him to pay the note, then it is clear that the latter would have a claim against T. E. Sheridan. The test is not whether T. E. Sheridan is adverse to Sanford, but it is whether a reversal or modification of the decree would injuriously affect T. R. Sheridan: Smith v. Burns, 71 Or. 133, 134 (135 Pac. 200, 142 Pac. 352, Ann. Cas. 1916A, 666, L. R. A. 1915A, 1130); The Victorian, 24 Or. 121, 127 (32 Pac. 1040, 41 Am. St. Rep. 838). A reversal or modification of the decree would injuriously affect the interest of T. E. Sheridan, and service of notice of appeal upon him was essential to confer jurisdiction upon this court, even though he is a codefendant with the appellant: Lane v. Wentworth, 69 Or. 242, 245 (133 Pac. 348, 138 Pac. 468). Appellate jurisdiction depends upon service of notice upon all adverse parties, and therefore the appeal must be dismissed because notice was not given to T. E. Sheridan, who is an adverse party within the meaning of Section 550, L. O. L., amended by Chapter 319, Laws of 1913.

The motion to dismiss the appeal is allowed.

Appeal Dismissed.

Mr. Justice Eakin took no part in the consideration of this case.