State v. Olcott

135 P. 95, 67 Or. 214

• Court: Oregon Supreme Court
• Decided: September 30, 1913
• Status: Published

Opinions

Me. Justice Bean

delivered the opinion of the court.

The decree appealed from, which was rendered September 4, 1913, and the notice of appeal given in open court, are as follows: “It is considered, ordered, and decreed that the suit be and the same hereby is dismissed, and that neither party recover of and from the other his costs and disbursements in this case. Whereupon the plaintiff gives notice in open court of appeal to the Supreme Court as to defendant Ben W. Olcott.”

Plaintiff contends that the defendant Farrell is not a necessary party to the suit, nor an adverse party within the meaning of the law. Section 550, L. O. L., provides that a party to a judgment or decree desiring to appeal therefrom, or some specified part thereof, may by himself or attorney give notice in open court or before the judge, if the order, judgment or decree be rendered or made at chambers, at the time said judgment, decree or order is made, that he appeals from such decision, order, judgment or decree, or from some specified part thereof, to the court to which the appeal is sought to be taken; and such notice shall thereupon by order of the court or the judge therefor be entered in the journal of the court. When such a notice is given in open court, the adverse parties are required to take cognizance thereof. The notice of appeal, as to the portion of the decree appealed from, is couched in general terms. As we construe this notice, it was given to all the parties to the suit. As to the parties to whom notice was given, the form of the notice, so far as we are advised, is in accordance with the practice that has prevailed since the adoption of the statute permitting notice to be given in open court. The plaintiff, being satisfied with the decree as to W. E. Farrell, and not desiring to appeal therefrom, added the words “as to defendant Ben W. Olcott,” signifying that the said appeal was from the decree in favor of defendant Ben W. Olcott, but not from the decree in favor of defendant W. E. Farrell.

Our view upon this question renders it unnecessary to consider at this time whether or not W. E. Farrell is an adverse party within the meaning of the statute requiring notice of appeal to be served on all adverse parties.

Notice having been given to each of the defendants, the court has jurisdiction of the cause, and the motion to dismiss the appeal is denied. All concur.

Denied.