U. S. Investment Corp. v. Portland Hospital

Oregon Supreme Court

U. S. Investment Corp. v. Portland Hospital

64 P. 644, 40 Or. 523, 1901 Ore. LEXIS 166

CourtOregon Supreme Court

DecidedApril 15, 1901

StatusPublished

Cited by15 cases

This text of 64 P. 644 (U. S. Investment Corp. v. Portland Hospital) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

U. S. Investment Corp. v. Portland Hospital, 64 P. 644, 40 Or. 523, 1901 Ore. LEXIS 166 (Or. 1901).

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Opinions

On Motion to Dismiss Appeal.

Mr. Chief Justice Bean

delivered the opinion.

This is a motion to dismiss the appeal because notice thereof was not served upon the Portland Hospital, E. H. Habighorst, trastee, J. Benson Starr, and Charles H. Chance, whose interests, it is contended, are adverse to the appellants. These parties did not appear in the court below, but made default. Prior to the amendment of Section 537, Hill’s Ann. Laws (Laws 1899, p. 228), the statute required the notice of appeal to be served on all parties whose interests in relation to the judgment or decree appealed from were in conflict with the reversal or modification sought, notwithstanding such parties may have been in default: (Moody v. Miller, 24 Or. 179, 33 Pac. 402; Jackson County v. Bloomer, 28 Or. 110, 41 Pac. 930); but the section as amended provides that if the appeal is not taken at the time the judgment is rendered, it may be taken within a specified time thereafter, by serving a notice thereof on such adverse party or parties as have appeared in the action [525]*525or suit. The manifest purpose of this change in the law was, as its language clearly indicates, to require the notice of appeal to be served only upon the parties who had appeared, and to dispense with the necessity of serving those who were in default. There could have been no other reason for the amendment. The motion to dismiss is therefore overruled.

Decided 13 January, 1002. For appellant there was an oral argument with a brief by Mr. William Y. Masters, to this effect:

Portland Hospital was not organized under the private corporation law of the state, but was a public corporation: McDonald v. Mass. Gen. Hospital, 120 Mass. 432.

That these claims are a lien prior to respondents’ mortgage and trust deed see: Hembree v. Dawson, 18 Or. 474 (23 Pac. 264); Hopfensack v. Hopfensack, 61 How. Pr. 508; Beckwith v. Corrall, 56 Ala. 12; Heisen v. Binz, 147 Ind. 284 (45 N. E. 104); Cake v. Mohun, 164 U. S. 311 (17 Sup. Ct. 100); Jaffray v. Roob, 72 Iowa 335 (33 N. W. 349); Fosdick v. Schall, 99 U. S. 253; Raht v. Attrill, 106 N. Y. 423 (60 Am. Rep. 456, 13 N. E. 282); Burnham v. Bowen, 111 U. S. 783 (4 Sup. Ct. 675); Girard Life Ins. Co. v. Cooper, 162 U. S. 530; Karn v. Rorer Iron Co. 86 Va. 758.

We respectfully submit that there are three grounds upon which these receivers’ claims should be adjudged a prior lien to plaintiffs’ upon the property in the hands of the receiver.

Motion Overruled.

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On Motion to Dismiss Appeal.

Mr. Chief Justice Bean

delivered the opinion.

This is a motion to dismiss the appeal because notice thereof was not served upon the Portland Hospital, E. H. Habighorst, trastee, J. Benson Starr, and Charles H. Chance, whose interests, it is contended, are adverse to the appellants. These parties did not appear in the court below, but made default. Prior to the amendment of Section 537, Hill’s Ann. Laws (Laws 1899, p. 228), the statute required the notice of appeal to be served on all parties whose interests in relation to the judgment or decree appealed from were in conflict with the reversal or modification sought, notwithstanding such parties may have been in default: (Moody v. Miller, 24 Or. 179, 33 Pac. 402; Jackson County v. Bloomer, 28 Or. 110, 41 Pac. 930); but the section as amended provides that if the appeal is not taken at the time the judgment is rendered, it may be taken within a specified time thereafter, by serving a notice thereof on such adverse party or parties as have appeared in the action [525]*525or suit. The manifest purpose of this change in the law was, as its language clearly indicates, to require the notice of appeal to be served only upon the parties who had appeared, and to dispense with the necessity of serving those who were in default. There could have been no other reason for the amendment. The motion to dismiss is therefore overruled.

Decided 13 January, 1002. For appellant there was an oral argument with a brief by Mr. William Y. Masters, to this effect:

Portland Hospital was not organized under the private corporation law of the state, but was a public corporation: McDonald v. Mass. Gen. Hospital, 120 Mass. 432.

That these claims are a lien prior to respondents’ mortgage and trust deed see: Hembree v. Dawson, 18 Or. 474 (23 Pac. 264); Hopfensack v. Hopfensack, 61 How. Pr. 508; Beckwith v. Corrall, 56 Ala. 12; Heisen v. Binz, 147 Ind. 284 (45 N. E. 104); Cake v. Mohun, 164 U. S. 311 (17 Sup. Ct. 100); Jaffray v. Roob, 72 Iowa 335 (33 N. W. 349); Fosdick v. Schall, 99 U. S. 253; Raht v. Attrill, 106 N. Y. 423 (60 Am. Rep. 456, 13 N. E. 282); Burnham v. Bowen, 111 U. S. 783 (4 Sup. Ct. 675); Girard Life Ins. Co. v. Cooper, 162 U. S. 530; Karn v. Rorer Iron Co. 86 Va. 758.

We respectfully submit that there are three grounds upon which these receivers’ claims should be adjudged a prior lien to plaintiffs’ upon the property in the hands of the receiver.

Motion Overruled.

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64 P. 644, 40 Or. 523, 1901 Ore. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/u-s-investment-corp-v-portland-hospital-or-1901.

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