Fraley v. Hoban

133 P. 1190, 69 Or. 180

• Court: Oregon Supreme Court
• Decided: July 29, 1913
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the court.

1. This is a motion to dismiss an appeal, based on the ground of the alleged insufficiency of the notice properly to describe the judgment sought to be reviewed.

The record of the cause before us shows that on December 30, 1912, the plaintiff herein recovered from the defendant W. N. Jones, garnishee, the sum of $5,090, with interest thereon from July 11, 1907, at the rate of 6 per cent per annum and the costs and disbursements of the action. The notice referred to is entitled in the proper court; it gives the names of all the parties to the action, and, omitting the signature of the appellant’s attorneys, it reads as follows:

“You are hereby notified that the defendant W. N. Jones, garnishee in the above-entitled suit, appeals to the Supreme Court of the State of Oregon from the judgment rendered and entered herein on December 30, 1912, in favor of the plaintiff and against the said defendant; and that this appeal is taken from the whole of said .judgment.”

This notice was served on plaintiff and the service thereof was also admitted by the codefendants Hoban and Taggart, so that all the adverse parties who might be affected by a reversal or a modification of the judgment were thus informed of the proceedings undertaken to secure a transfer of the cause.

A statute declaring the adequacy of the information required to be furnished in order to obtain a review of a judgment or a decree reads as follows:

‘ ‘ Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to the Supreme or Circuit Court, as the case may be, from the judgment * * or decree, or some # * part thereof ’ ’: Section 550, L. O. L.

A notice of appeal, which correctly specifies the court rendering the determination involved, gives the names of the parties to the action, the date of the judgment, and informs the adverse parties that an appeal from the judgment in the cause has been taken, is sufficient without any other description: Ream v. Howard, 19 Or. 491 (24 Pac. 913). The notice of appeal herein comes within the specification thus approved. It was served upon all the adverse parties; the designation of the judgment is sufficient for identification; and, an undertaking on appeal having been given, jurisdiction was thereby conferred upon the court.

It follows that the motion should be denied, and it is so ordered. Motion Denied.

Statement by Mr. Justice Burnett.

In an action against the defendants, Hoban and Taggart, the plaintiff caused a writ of attachment to be issued and served with a notice of garnishment upon W. N. Jones, who certified “that I have this day no property in my possession or under my control belonging to the within named defendants, or either of them. Dated May 7, 1908.” Afterward, on a date not directly disclosed by the abstract, but at least prior to February 17,1912, the court entered a judgment which, after the title of the cause, reads thus:

“This cause coming on at this time to be heard on motion of attorney for plaintiff herein for a judgment in the above-entitled cause, and the court having heretofore made and entered its findings in accordance therewith, and upon motion of attorney for plaintiff herein, it is ordered and adjudged that the plaintiff recover from off of the defendants, or either of them, the sum of five thousand ninety ($5,090) dollars, together with interest thereon at the rate of 6 per cent per annum since the 11th day of July, 1907, and that he have judgment against the said defendants, and each of them, for the said amount, and for his costs and disbursements taxed at $-, and that execution may issue out of this court to satisfy the same. ’ ’

On April 25, 1912, the sheriff of Multnomah County certified that he had received an execution on February 17th of that year, issued upon this judgment, but that he returned the same, having been unable to find any property belonging to the defendants. It seems that on March 4, 1909, an order of the court was served upon Jones, as garnishee, commanding him to appear on the 6th day of that month before a judge of the Circuit Court to be examined on oath concerning the property in the possession of the garnishee belonging to the defendants. He appeared at that time, and his testimony was taken; but it does not appear that any order was then made or entered concerning his liability. On December 28,1912, the following notice signed by the attorneys for the plaintiff was served upon S. B. Huston, as attorney for the garnishee: