Spitzer v. Rolph

218 P. 748, 110 Or. 461, 1924 Ore. LEXIS 210

• Court: Oregon Supreme Court
• Decided: February 19, 1924
• Status: Published

Opinions

BURNETT, J.

The plaintiff claiming to have been injured by the negligent management of the tackle of the defendant ship, “Annette Rolph,” while he was on a dock in the City of Portland loading lumber upon the vessel, brought suit under Section 10281, Or. L., directly against the vessel, to enforce his lien created by that Section, “for damages or injuries done to” his person by the vessel.

Subsequent to the commencement of the suit, the Eolph Navigation & Coal Co., owner, and the McCormick Steamship Line, a corporation, agent and charterer, of the vessel together with American Surety Co., entered into an undertaking conditioned to satisfy the amount which should be adjudged to be due and owing to the plaintiff on the determination of the action, together with all costs accruing, all as provided in Section 10289, Or. L. The vessel was thereupon released from the detention of the sheriff who had seized it by virtue of a warrant issued at the beginning of the suit. The owner appeared on behalf of the ship and answered the complaint as permitted in Section 10287, Or. L. After reply and a hearing on issues joined, the court rendered a decree in favor of the plaintiff in the sum of $3,500 and ordered that the vessel with its tackle, apparel and furniture be sold and the proceeds thereof applied to the satisfaction of the decree, together with costs and disbursements. At the same time the Circuit Court rendered a judgment upon the undertaking in the same amount.

The vessel by name, and the owner thereof, the Eolph Navigation & Coal Co., served a notice of appeal on the plaintiff alone, and did not serve the same on the McCormick Steamship Line or the American Surety Co. The plaintiff now moves to dismiss the appeal on the ground that the other parties who signed the undertaking and were not served with notice of appeal are parties adverse to those appealing and should have had notice.

It is said in Section 550, Or. L., relating to taking an appeal,

“If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place in the state, and file the original with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered.”

Not only the vessel but also all the signers of the undertaking are alike interested in the defeat of the decree of the Circuit Court. Their hostility to that determination is identical. The plaintiff has not appealed and there can be no modification in his favor in this court: Caro v. Woolenberg, 83 Or. 316 (163 Pac. 94); Crumbley v. Crumbley, 94 Or. 617 (186 Pac. 423); Johnson v. Prineville, 100 Or. 105 (196 Pac. 817). This being a suit in equity, as held in Cordrey v. Steamship Bee, 102 Or. 636 (201 Pac. 202, 20 A. L. R. 1079), the issue on the appeal will be tried de novo in this court. Affected as it is by the principle that the plaintiff, not having ap^ pealed, cannot have a better decree here than the one rendered in the court below, the position of the defendants cannot be made worse than it already is. Any modification of the decree, therefore, would affect them favorably.

It is argued that the defendants in the judgment, who have not been served with notice of appeal, have a right to pay the judgment and so stop the litigation. This right, however, is identical in all the parties to the judgment on the undertaking. Something is said in the argument about the right of contribution affecting the question. That right, however, is not determined by the judgment itself. For aught that appears, the agreement may have been that the owner of the vessel would pay the entire judgment based upon the undertaking. It is possible that it was stipulated that one of the other parties should pay it. As between the individuals concerned at present and under the relations now involved, the question of contribution does not enter into the calculation. Where the matter of contribution and its proportions are determined by the decree itself, the argument might have some effect, but no such provision is inserted in this decree and it depends upon the contract between the parties themselves, independent of the decree. In short, all the individuals who signed the undertaking have identical rights and are alike hostile to the enforcement of the decree. For the purposes of appeal, none of them can occupy the contradictory position of being at once in favor of the extinction of the decree and at the same time in favor of its enforcement.

There is another reason why the appeal should not be dismissed. The statute only requires notice “to be served on such adverse party or parties as have appeared in the action or suit.” In Williams v. Pacific Surety Co., 70 Or. 208 (139 Pac. 934), it was held that one who has signed an undertaking in a case does not thereby appear therein and hence that it was not necessary to serve notice of appeal on such an individual. Appearances as employed in this statute is predicated of persons in favor of or against whom allegations are made in the pleadings and who are called upon to prosecute or defend. Hence those who merely signed the undertaking did not thereby “appear” so as to require service upon them of the notice of appeal.

Snell cases as Templeton v. Morrison, 66 Or. 493 (131 Pac. 319, 135 Pac. 95); Smith v. Burns, 71 Or. 133 (135 Pac. 200, 142 Pac. 352, Ann. Cas. 1916A, 666, L. R. A. 1915A, 1130), and Southwestern Insurance Co. v. Foster, 85 Or. 206 (165 Pac. 1176), cited here by the plaintiff, are distinguishable from the instant case at least by the fact that in each one of them the person not served was a defendant named as such in the pleadings and summons. In the Ternpleton-Morrison case, no point was made because one defaulting defendant was not served with notice of appeal. Even under the statute as it stood, requiring notice of appeal, to be served on “adverse party” irrespective of his appearance, before the amendment embodied in the act of February 27, 1899 (Laws 1899, p. 227), Mr. Chief Justice Lord, in The Victorian, 24 Or. 121 (32 Pac. 1040, 41 Am. St. Rep. 838), said:

“ ‘Any party’ evidently refers to any person who is party to the action.”

That case was a suit against a steamship under the same statute here involved, wherein a decree was rendered against not only the boat, but also against the sureties on the undertaking for its release and it was there held that it was not necessary to serve the sureties when taking an appeal. First “Words and Phrases,” page 224, gives this definition:

“An ‘adverse party’, entitled to notice of appeal is every party whose interest in relation to the judgment and decree appealed from is in conflict with the modification or reversal sought by the appeal; every party interested in sustaining the judgment or decree,” citing numerous authorities, including The Victorian.

(223 Pac. 252.)

Individuals whose attitude toward a decree is identical with that of all others who are equally interested in its defeat or its affirmation, cannot be adverse to each other on an appeal. What may happen subsequently by virtue of some contract collateral to that embodied in the undertaking must be treated in the light of the statute in force when it was executed. It may well be doubted whether one signing such an undertaking for a statutory purpose could destroy a judgment upon it by paying it and so cut off his co-obligor’s statutory right of appeal.

In brief, although affected by the judgment or decree by virtue of their ancillary engagement they are not parties to the suit. Much less are they adverse parties. Finally, conceding them to be adverse parties, they did not appear in the suit so as to entitle them to notice of appeal. The motion to dismiss the appeal is denied. Motion Denied.