Thienes v. Francis

134 P. 1195, 69 Or. 171

• Court: Oregon Supreme Court
• Decided: September 16, 1913
• Status: Published

Opinions

Mr. Justice Ramsey

delivered the opinion of the court.

This is a motion for a dismissal of the appeal in this suit. The respondent Francis asks that this appeal be dismissed for the alleged reasons that, in the action at law referred to in the above statement of facts, the defendant therein and plaintiff in this suit filed his answer to the amended complaint in said action and voluntarily took part in the trial thereof, after the decree in this suit was rendered, without having first appealed this case, and because, as the defendant alleges, the plaintiff accepted the benefits of said decree and by so doing waived his right to appeal, etc.

The decree appealed from was rendered in the court below on the 11th day of March, 1913, and it enjoined the defendant in this suit from prosecuting said action at law against the plaintiff in this suit and defendant in said action to recover the value of the grain and hay mentioned in the complaint in said action. The defendant herein, and plaintiff in said action, a few days after said decree was rendered, filed his amended complaint in said action and served a copy thereof on the defendant therein. The defendant in said action filed his answer to said amended complaint, and the plaintiff therein filed his reply, and said action at law was tried, and a judgment thereon rendered on April 8, 1913. After the rendition of said judgment, the plaintiff in this suit appealed to this court from the decree rendered as stated.

The defendant herein claims that the defendant in said action, by filing his answer therein and participating in the trial thereof, waived his right to appeal this case. The decree appealed from held that the grain and hay mentioned in the complaint in the action were the property of the plaintiff in this suit and enjoined the defendant therein from prosecuting his said action to recover the value thereof, but that was the extent of the injunction. Said decree left the plaintiff in said action free to prosecute said action against the defendant therein for all things mentioned in the complaint excepting the hay and grain. The defendant therein had a right to defend said action, and by so doing he did not waive his right to appeal from the decree in this suit. He was under no obligation to waive his defense in said action or to notify the plaintiff therein of his intention to appeal from the decree in this case, until he was ready to take his appeal.

This is a suit by W. C. Thienes against I. M. Francis and A. M. Brewer. The facts are set forth in the opinion of the court.

Modified. For appellant there was a brief and an oral argument by Mr. H. E. Slattery.

It was the plaintiff in said action, and not the defendant therein, who prosecuted said action to judgment, and he has no ground of complaint against the defendant therein for participating in said trial, or for appealing this case, or for accepting the results of said decree. The plaintiff herein had a legal right to appeal, and he has not waived that right by anything alleged in said motion.

The motion to dismiss the appeal is denied.

Motion Denied.

Mr. Chief Justice. McBride, Mr. Justice Moore and Mr. Justice Burnett concur.