Stull v. Porter

184 P. 260, 100 Or. 514

• Court: Oregon Supreme Court
• Decided: October 7, 1919
• Status: Published

Opinions

BURNETT, J.

The plaintiff brought an action in a Justice’s Court against the defendants Porter and Bunch, charging them with the tort of killing her two dogs, laying her damages in the sum of $250. The result of a jury trial there was a verdict and consequent judgment against them for the full amount claimed. Porter alone appealed to the Circuit Court and did not serve Ms notice upon Ms codefendant. Bunch did not appeal. At the trial in the Circuit Court the plaintiff ignored Bunch and proceeded as if Porter were the only defendant entitled to be heard there, obtaining a judgment against Porter alone for the full amount of damages claimed. Both defendants have appealed from the Circuit Court judgment to this court.

1. The case is now before us on the plaintiff’s motion to dismiss the appeal of Bunch. The justice’s judgment was rendered by a court having jurisdiction both of the subject-matter and of the persons of the defendants. Either defendant had a right to appeal to the Circuit Court and unless he served his codefendant as well as the plaintiff, Porter could not bind Bunch by his appeal. The latter had a right to be satisfied with the judgment in the Justice’s Court. Of course, if Porter’s appeal would adversely affect the interest of Bunch, Porter could not carry it on without having served Bunch with notice and thus made him a party to the appellate procedure. On the other hand, if Bunch wished to appear in the Circuit Court on the appeal and participate therein, he was obliged to adopt the method prescribed by the statute, which is to serve his notice and give the undertaking required. Moreover, the judgment of the Circuit Court is not against Bunch, but against Porter only. As he is not affected by its terms, Bunch has no cause of complaint in this court. In short, he did not pursue the formula necessary for him to gain admission into the Circuit Court. He was a stranger to the proceedings there, not only on account of his neglect but also because the judgment of the Circuit Court is not against him and does not affect his interest. Hence, he has no standing in this court.

Opposing the motion to dismiss, the defendants rely upon Cauthorn v. King, 8 Or. 138. There, Cauthorn sued the defendants in the Justice’s Court in trover and obtained a judgment against Bell alone. The case was decided here on a construction of the record showing that both defendants answered in the Justice’s Court and that they both appeared in the Circuit Court. But how they both appeared is not stated in the opinion. It is urged that because on appeal from the Justice’s Court the cause is heard anew upon the issues tried in the court below, Section 556, L. O. L., the appeal by one party brings up the case as to all parties, whether served or not. This construction would mean that the costs and expenses of an appeal could be visited upon a codefendant against his will, and also that any defendant could get the benefit of an appeal by a codefendant without tendering any security or undertaking for such an appeal. As stated in Claggett v. Blanchard, 8 Dana (Ky.), 41, cited here on behalf of Bunch:

“We consider it entirely certain that the legislature did not intend to require or authorize the Circuit Court, upon an appeal by one defendant who had been served with the justice’s warrant, to try the case and give judgment against another, who had neither been served with the warrant, nor appeared in the Circuit Court, nor been summoned to do so; and neither this nor any other statute, nor any known practice authorizes that court to issue a summons or other process against a person thus situated.”

The Kentucky statute alluded to provided in substance that one or more of several individuals against whom a judgment is rendered by a justice may appeal, that such appeal by one shall place the cause for trial in a court of appeals, as fully as if taken by all, and that such court shall proceed therein and render “judgment between all those who were parties to the judgment of the justice.” If, under such a statute, relating not only to issues but also to parties, the court will decline to take notice of a party who is not subject to its process, much more must we decline in a case like this before us to entertain the appeal of a party who is not affected by the judgment appealed from and who was not before the court rendering it. The case indeed is heard in the appellate court on the issues involved in the inferior court, but only as they affect the parties to the appeal. A different case might be presented if the action were one in which only a joint judgment or none could be rendered against the defendants. Under such conditions we would be compelled to decline to hear even the appealing defendant unless he had served his notice of appeal not only upon the plaintiff but also upon his codefendant.

2. Since this is an action for tort, the defendants may be liable jointly or severally, and under Section, 180, L. O. L., “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” Further, in Section 181, L. O. L., it is said:

“In an action against several defendants the court may in its discretion render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the other.”

It did not necessarily follow, therefore, that because the parties were sued jointly the only result would be a joint judgment. There was, however, a joint judgment in the Justice’s Court, from which either party defendant had a right to appeal. Inasmuch as his appeal could not make worse the situation of his codefendant, Porter had a right to pursue his own remedy without compelling his codefendant to participate. Being thus left out of the appeal, if Bunch had wished to gain the benefit of such procedure, he ought to have initiated one on his own behalf and entered the Circuit Court by the statutory door thus provided for him. Since he did not pursue this course, Bunch was not properly before the Circuit Court and that tribunal could not render any judgment for or against him. It had a right to consider the appeal of Porter and render judgment according to the merits of the case as presented respecting him, with the right reserved to Porter, the party to that judgment, to appeal to this court. Bunch was a stranger to the portion of the proceeding occurring after the lapse of the period in which he was entitled to appeal to the Circuit Court.

3. It is argued that the result is that the plaintiff has two judgments for the same demand. However, this may be, she can enjoy only one recovery. The rights of the parties in that matter can be worked out by post-judgment procedure.

The motion to dismiss the appeal of Bunch is allowed.

Appeal Dismissed as to Appellant Bunch.