Hewey v. Andrews

159 P. 1149, 82 Or. 448

• Court: Oregon Supreme Court
• Decided: September 19, 1916
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Moore.

This was an action by S. Hewey against C. S. Andrews, Lillie M. Andrews, Clarence L. Look and Ethelda M. Look, to recover the balance of an alleged commission for services rendered by the plaintiff in effectuating the sale of land. The cause was tried and a verdict of $1,727.50 returned February 16, 1916, against C. S. Andrews and Lillie M. Andrews, whose counsel, invoking the rule established in Fish v. Henarie, 14 Or. 29 (13 Pac. 193), Wilson v. Blakeslee, 16 Or. 43 (16 Pac. 872), Thomas v. Barnes, 34 Or. 416 (56 Pac. 73), and North Pacific Lumber Co. v. Spore, 44 Or. 462 (75 Pac. 890), moved for a judgment dismissing the action notwithstanding the verdict, on the ground that the obligation sued on was joint, and that as the trial was had and the verdict returned as to only two of the defendants, no valid judgment could be predicated thereon. This motion was denied March 1, 1916, by a judgment, a part of which reads:

“Thereupon it is hereby ordered that the judgment heretofore given and made in this court and cause on the sixteenth day of February, 1916, be and the same is hereby set aside, vacated, and held for naught as to the defendant Lillie M. Andrews, but the same is continued in full force and effect as to the defendant C. S. Andrews, and that this cause be, and the same is hereby, dismissed as to the defendants Lillie M. Andrews, Clarence L. Look, and Ethelda M. Look, and that the defendant Lillie M. Andrews have and recover of and from the plaintiff her costs and disbursements in this action to be taxed. ’ ’

1. In order to review the latter determination C. S. Andrews, on April 29,1916, served a notice of appeal, and filed it May 1st following. The plaintiff’s counsel move to dismiss the appeal on the ground that it was not taken within the 60 days limited therefor. The statute-regulating the recording of final determinations by a Circuit Court reads:

“If the trial be by jury, judgment shall be given by the court in conformity with the verdict and so entered by tbe clerk within the day on which the verdict is returned”: Section 201, L. O. L.

Under the provisions of this enactment a motion to set aside a verdict and for a new trial will not ordinarily suspend the running of the statute of limitations as to the time limited for taking an appeal: Barde v. Wilson, 54 Or. 68 (102 Pac. 301); Oldland v. Oregon Coal & Nav. Go., 55 Or. 340 (99 Pac. 423, 102 Pac. 596); Colgan v. Farmers & Mechanics’ Bank, 59 Or. 469 (106 Pac. 1134, 114 Pac. 460, 117 Pac. 807); Macartney v. Shipherd, 60 Or. 133 (117 Pac. 814, Ann. Cas. 1913D, 1257); Gearin v. Portland Ry., L. & P. Co., 62 Or. 162 (124 Pac. 256); Hahn v. Astoria National Bank, 63 Or. 1 (114 Pac. 1134, 125 Pac. 284); De Lore v. Smith, 67 Or. 304 (132 Pac. 521, 136 Pac. 13, 49 L. A. R. (N. S.) 555); Skelton v. Newberg, 76 Or. 126, 136 (148 Pac. 53). Where, however, the original judgment is modified by a subsequent order, the date of the latter judgment is the time from which the limitation for taking the appeal should begin to run. In this instance the judgment was not altered as to 0. S. Andrews, but if he were dissatisfied with the dismissal of the action as to Lillie M. Andrews, he would have been obliged to appeal from that determination, notwithstanding he may have taken an appeal from the original judgment. This procedure, if sanctioned, would necessitate two appeals by the same party when a single review of the final judgment by him ought to be sufficient, in which appeal the intermediate order could be reviewed: Section 558, L. O L. We conclude, therefore, that the original judgment, having been set aside in part, was in effect vacated in all particulars, and that the modified judgment, by referring to the preceding determination, incorporated therein the original judgment as to O. S. Andrews, thus making the latter judgment final, and the one from which this appeal was properly taken.

2. By the statutory method of computing time the last day thus limited for perfecting the appeal was April 30, 1916; hut, as that day was Sunday, the notice was properly filed the next day: Section 531, L. O. L.

The motion to dismiss the appeal is denied.

Motion Denied.