First Nat. Bank v. Wegener

181 P. 990, 94 Or. 318

• Court: Oregon Supreme Court
• Decided: June 24, 1919
• Status: Published

Opinions

BENNETT, J.

We are of the opinion that the motion to dismiss in the Wright case is not well taken. There seems to have been a virtual, if not a formal, consolidation of the cases for trial.

1. It is very plain from the notice that Wright intends to appeal and does appeal from both decrees; and indeed each decree is separately and fully described. It is impossible that the adverse party should have been in any way misled. Perhaps it might have been more appropriate to have served an entirely distinct and separate notice in each case, but we cannot say under the circumstances and conditions of the record that the notice was fatally defective as to either one. Certainly it would not be defective as to both, and it would be impossible to distinguish and say that it would be defective in one and not in the other.

It is urged that the effect of this duplicate appeal would be to save a filing fee in one case or the other. Whether or not this is true, we do not think it would justify us in dismissing an appeal where the notice sufficiently describes each of the decrees, and fully notifies the adverse parties that it is the intention to appeal from each of them.

2. As to the service by mail, we are of the opinion that that also is sufficient. Section 550, L. O. L., as amended, provides that the notice of appeal shall be served upon the adverse party, “or upon his or their attorney at any place in the state.” Section 540, L. O. L., in regard to service by mail, provides:

“Service by mail may be made when the person for whom the service is made, and the person upon whom it is to be made, resides in different places.”

Under these sections the appellant Wright had the option to serve his notice of appeal either upon the party individually, or upon his attorney, at any place in the state; and having selected that option in favor of the attorney, such attorney became the “person” who was being served and he living at a different place, to wit: the town of Baker, the service upon him could be properly made by mail. This seems the natural construction of the language, but besides this, it is the usual and we think the appropriate practice, where there is an attorney of record to serve the notice of appeal upon him, even although such attorney does reside out of the county. This being a proper and usual thing to do, the service can unquestionably be made by mail.

What is said above in regard to the Wright appeal, also disposes of the motion to dismiss the appeal of the intervener, Hall. The double notice of appeal in his case was somewhat more general than in the Wright case, but we think it was sufficient under the holding in Robinson v. Phegley, 93 Or. 299 (177 Pac. 942, 178 Pac. 799, 182 Pac. 373); Fraley v. Hoban, 69 Or. 180.(133 Pac. 1190, 137 Pac. 751), and Tucker v. Nuding, 92 Or. 319 (180 Pac. 903).

The motion to dismiss the appeal in both cases is denied. Denied.