Richter v. Richter

245 P. 321, 223 P. 543, 117 Or. 621

• Court: Oregon Supreme Court
• Decided: February 7, 1924
• Status: Published

Opinions

McBRIDE, C. J.

This is a motion to dismiss an appeal on the ground that the notice of appeal does not sufficiently state the judgment appealed from. The contention arises out of thé following circumstances: On September 20, 1923, the Circuit Court entered in favor of pláintiff the following decree:

“It is considered, ordered and adjudged that the plaintiff, Arthur Myron Richter, is entitled to, and he is hereby decreed to be, the owner, in fee, of an undivided one-fourth interest in lot numbered six (6) in block twenty-nine (29) in Caruthers Addition to the City of Portland, according to the maps and plats thereof on file with the county clerk of Multnomah County, the same being, lying and situate in Multnomah County, and State of Oregon.

“It is further ordered and decreed that said plaintiff, Arthur Myron Richter, do take, have and recover of and from the defendants, Rosa Richter, Morris A. Richter, Ruth Richter, and Sarah Richter, and each of them, jointly and severally, judgment for the sum of $7,000, and Ms costs and disbursements herein in-cured, taxed at $-, and that execution issue therefor.”

And thereafter, on the fourteenth day of November, 1923, the court entered the following decree:

“Now at this time, the court having filed its findings of fact and conclusions of law herein, which are in favor of the plaintiff and against the defendant, Rosa Richter, and it appearing' that the prior decree entered on the 20th day of September, 1923, should be modified,

“It is now ordered that said prior decree be and the same is hereby modified, and the following decree entered:

“Ordered and adjudged and decreed that the suit be dismissed as against the defendants Morris A. Richter, Ruth Richter and Sarah Richter, and it is further

“Ordered and adjudged and decreed that the plaintiff have and recover judgment of and from the defendant, Rosa Richter, for the sum of $6454.65 and that the plaintiff be decreed to be the owner of a one-fourth interest in the real property described as:

“Lot numbered six (6) in block numbered twenty-nine (29) ‘in Caruthers Addition to the City of Portland, according to the maps and plats thereof on file with the county clerk of said county and state, subject to the dower right of the defendant, Rosa Richter, and that neither party recover costs herein.”

Thereafter the defendant, the appellant here, on the fifteenth day of November, 1923, served and filed the following notice of appeal:

“You and each of you will please take notice that the defendant, Rosa Richter, hereby appeals from a judgment and 'decree entered against her in the above entitled court and cause on the 20th day of September, 1923, as modified and entered on the 14th day of November, 1923, in favor of the plaintiff herein and against the defendant, Rosa Richter, for the sum of $6454.65, and that the said plaintiff herein be entitled to a one-fourth interest to the property described as lot numbered six (6) in block numbered twenty-nine (29) in Caruthers Addition to the City of Portland, according to the maps and plats thereof, on file with the county clerk of Multnomah County, and State of Oregon, subject to the dower right of the defendant, Eosa Eichter, and from the whole of said decree to the supreme court of the State of Oregon.”

It is objected that this is merely an appeal from the decree of the twentieth day of September, 1923, and does not constitute notice of appeal from the later decree of the fourteenth day of November, 1923.

It is sufficient notice if the notice of appeal describes with convenient certainty the decree appealed from and the court to which the appeal is taken; and it is very evident to our minds that this notice does so, and that the plaintiff is just as fully informed by the notice here of the matter which would be contested in the Supreme Court as he would have been if no reference had been made to the original decree of September 20, 1923. It is true that the alleged modification is so extensive as practically to constitute a new decree, in particular, as to the amount of the judgment and as to the costs, but both were in the same case and both were in favor of the plaintiff and against the appellant here and respondent could not be misled by the reference to both decrees.

The motion is denied. Motion Denied.

For appellant there was a brief and oral arguments by Mr. D. Solis Cohen and Mr. Martin L. Pipes. For respondent there was a brief and oral argument by Mr. C. M. Hodges.

Affirmed April 13, 1925.