State v. Simpson

137 P. 750, 69 Or. 93, 1914 Ore. LEXIS 314

• Court: Oregon Supreme Court
• Decided: January 6, 1914
• Status: Published

Opinions

Mr. Justice MoNary

delivered the opinion of the court.

- This is a motion to dismiss an appeal; the movent assigning two reasons therefor: (1) That appellant is in no sense aggrieved by the judgment, inasmuch as the court gave him “everything prayed for”; (2) that “there has ceased to be, if there ever was, any controversy between the parties.”

Historically the case presents this situation: The relator, Geo. S. Shepherd, for a period of time prior to December 9, 1911, the date of the contest in question, was captain of the Oregon Naval Militia. The time of the annual election arriving, defendant E. M. Simpson, contested with relator his right to a reelection. The canvassing board declared defendant elected to the office of captain of the Oregon Naval Militia, whereupon relator, conformable to the provisions of Section 368 et seq., L. O. L., brought this action in ”ie name of the state against defendant for usurpation of the office. Service of process was made upon defendant, but, no appearance being made, defendant’s default was noted and a judgment for want of an answer entered. After trial the lower court adjudged that defendant never qualified for the office to which he had been elected, and, in the absence of any lawfully chosen successor, appellant was the lawful incumbent of the office of captain of the Oregon Naval Militia. Relator, feeling displeased with the judgment of the lower court, brings this appeal and, when perfecting the same, served a notice thereof on defendant, who now appears and urges his motion to dismiss the appeal.

1. Section 550, L. O. L., indicating the manner in which an appeal shall be taken and perfected, states in substance that, if an appeal is not taken in open court, the party desiring to appeal may cause a notice thereof to be served on “such adverse party or parties as have appeared in the action or suit. ’ ’ Defendant not having appeared in the lower court, it became unnecessary, in view of the statute to have served him with notice of appeal, as the section limits those to be served with notice to such only as have “appeared” in the suit or' action. Appellant, in notifying defendant of the appeal, performed an act of supererogation which created no additional rights in defendant: United States Inv. Corp. v. Portland Hospital, 40 Or. 524 (64 Pac. 644, 67 Pac. 194, 56 L. R. A. 627).

2. A defendant, in making a default, impliedly invites the court to grant unto plaintiff all the relief to which his pleadings show him entitled, and he cannot be heard to complain if plaintiff labors under the belief that an appeal is necessary in order to establish the rights which he deemed his pleadings warrant. The statute expressly withholds the right of appeal from a defendant who permits a judgment or decree to be entered against him by default and by implication inhibits him from assailing an appeal taken from a judgment which defendant acquiesced in being entered.

3. Notwithstanding defendant’s inability to attack appellant on appeal, has the latter a right of appeal? Section 549, L. O. L. reads: “Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom. The party appealing is known as the appellant, and the adverse party as the respondent; but the title of the action is not changed in consequence of the appeal.” The language of the statute plainly inhibits both plaintiff and defendant from taking an appeal from a judgment or decree given by confession or for want of an answer, as it reads, “Any party,” to a judgment or decree, so that when a sole defendant, as in this case, or all of the defendants when more than one, permit a judgment or decree to be entered for want of an answer or by confession, neither plaintiff nor defendant has a right of appeal. While this rule may seem harsh, yet it necessarily follows from a simple reading of the statute.

Believing this court is without jurisdiction in the premises, this appeal is dismissed by the court sua sponte.

Motion to dismiss overruled. Appeal dismissed by court on its own motion. Motion Overruled.

Appeal Dismissed by Court : Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice Bean concur.