Morey, Administratrix v. REDIFER

282 P.2d 1062, 264 P.2d 418, 204 Or. 194, 1955 Ore. LEXIS 285

• Court: Oregon Supreme Court
• Decided: April 20, 1955
• Status: Published

Opinions

LUSK, J.

The respondents, E. B. DeFeyter and Roy J. Johnson, doing business as Power City Electric Co., and Clyde E. Irion have moved to dismiss the appeal as to them.

The action is one for wrongful death. The appellant, J. C. Redifer, doing business as J. C. Redifer Co., and the moving respondents were joined as defendants. On the trial DeFeyter and Johnson were granted a judgment of involuntary nonsuit, and the jury found in favor of Irion and against the appellant Redifer. Redifer served written notice of appeal on his co-defendants as well as on the plaintiff. In support of the motion to dismiss it is urged that the moving respondents are not adverse parties upon the appeal.

Where written notice of appeal is given it must be served upon “such adverse party or parties as have appeared in the action or suit, or upon his or their attorney”. § 10-803, OCLA.

An adverse party within the meaning of the statute is a party whose interest in relation to the judgment is in conflict with the modification or reversal sought by the appeal. Silbaugh v. Guardian Building & Loan Ass’n., 164 Or 286, 291, 297, 97 P2d 943, 99 P2d 1017, 101 P2d 420; In re Brooks’ Estate, 167 Or 428, 432, 433, 118 P2d 103.

Neither of the moving respondents has any such interest in relation to this appeal. A reversal or modification of the judgment would not affect them in the slightest. They have each of them a judgment in their favor in an action brought against them by the plaintiff and from which the plaintiff has not appealed. These judgments are a bar to any further proceedings against them. Counsel for the appellant are mistaken in their assumption that a reversal of the judgment against him would revive the action against the other defendants. The case of Wilkens v. Western States Grocery Co., 167 Or 103, 114 P2d 542, relied on by the appellant, will bear no such interpretation. In that case there was a judgment against Western States Grocery Company, one of four alleged joint tort feasors. The other defendants were granted judgments of involuntary nonsuit. Western States Grocery Company served notice of appeal on the plaintiff alone. We held that reversible error was committed on the trial and remanded the ease for a new trial. It was not necessary for us to say, because it went without saying, that the parties on the new trial would be the same as the parties on the appeal, namely, the plaintiff and Western States Grocery Company, and no others. Although we necessarily considered the legal relationship of the various defendants one to another, as disclosed by the evidence, we decided only that the court erred in refusing to submit to the jury the question whether Western States Grocery Company had possession and control of the premises on which the plaintiff was injured. Any possible, incidental reflection from that ruling upon the correctness of the trial court’s orders granting the other defendants judgments of nonsuit could not, and did not, affect the interests of those defendants, for they were out of the case, and neither this court nor any other had power or jurisdiction to bring them back in.

The moving respondents are neither necessary nor proper parties to this appeal, and their motions to dismiss are allowed.

Arthur S. Vosburg argued the cause for appellant. Harry A. Slack, of Coquille, argued the cause and filed a brief for respondent. Before Warner, Chief Justice, and Tooze, Lusk and Brand, Justices.