Strong v. Smith

208 P. 715, 105 Or. 365, 1922 Ore. LEXIS 79

• Court: Oregon Supreme Court
• Decided: June 27, 1922
• Status: Published

Opinions

BEAN, J.

As a preliminary question it is submitted in the brief of proponents and respondents that this court has no jurisdiction of this proceeding for the reason that all parties adverse to the appellants appearing in the lower court have not been served with a notice of appeal, such parties being the old People’s Home of Portland, the Visiting Nurses Association, Etna B. Chattin and William E. Metzger, who were each served with a citation, and The Home, which was served with a citation and also filed an answer suggesting that the validity of the will of 1915 be first determined before the hearing of the petition for the probate of the 1911 will. The above-named parties, except The Home, did not answer or appear in the trial of these proceedings, except that Etna B. Chattin and William E. Metzger were witnesses for proponents. Section 550, Or. L., requires that:

“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 * *

The citation served upon the parties answers the purpose of a summons, and unless such parties file an answer or give written notice of appearance they are not entitled to service of notice of further proceedings in the action, or to notice of appeal: See Section 542, Or. L.: Belknap v. Charlton, 25 Or. 41 (34 Pac. 758).

As stated, The Home appeared in the contest by filing an answer. It is not an adverse party in this proceeding and would not be aggrieved by a decision of this court setting aside the probate of the will of 1915, and establishing the validity of the will of 1911. It is shown by the record that under the will of 1911, The Home is given a vastly larger share of the estate than under the will of 1915. The record further discloses that The Home filed a petition in this court duly verified showing that this charitable institution “has the most vital interest in the contest of the probate of said will,” and praying that it might appear in this court upon appeal by its attorney Hon. Gruy C. H. Corliss, and file a brief herein and make oral argument on behalf of The Home. Judge Corliss appeared in this court with counsel for contestants at the time of hearing argument. The Home therefore is far from being an adverse party on this appeal: See Appeal of Buckingham, 57 Conn. 544 (18 Atl. 256); Smith v. Chaney, 93 Me. 214 (44 Atl. 897); McDonald v. McDonald, 142 Ind. 55 (41 N. E. 336); In re Hunt’s Will, 122 Wis. 460 (100 N. W. 874). No notice to dismiss the appeal was filed by respondents. The record shows that this court has jurisdiction of this proceeding upon this- appeal.