Watson v. Noonday Mining Co.

55 P. 867, 37 Or. 287

• Court: Oregon Supreme Court
• Decided: May 5, 1900
• Status: Published

Opinions

Per Curiam.

This suit was brought in the Circuit Court of Douglas County by J. Frank Watson to foreclose certain material men’s liens on a mining claim in that county, belonging to the defendant, the Noonday Mining Co. The John A. Roebling’s Sons Co., a foreign corporation, was made a defendant, under the allegation that it had or claimed some interest in or lien upon the mine, but that such interest or claim was subsequent to and subject to plaintiff’s lien. It answered, denying that its claim or lien was subsequent to that of plaintiff, and setting up a lien for materials furnished" by it to the contractor and agent of the Noonday Mining Co., which it alleges is superior to the lien of plaintiff. The Noonday Mining Co. answered, putting in issue the validity of both liens ; and a trial resulted in a decree establishing the liens of both these parties, and directing the sale of the mining property, and the distribution of the proceeds •among them. From this decree the Noonday Mining Co. appealed, by serving a notice thereof in Douglas County upon the resident attorney of the plaintiff, and in Multnomah County; upon the attorneys of Ro'ebling’s Sons Co., who are residents of such county.

1. The plaintiff now moves to dismiss the appeal, on the ground that the Roebling’s Sons Co. is an adverse party, and that service of the notice of appeal upon its attorney in Multnomah County is not sufficient to confer jurisdiction. Conceding the soundness of the latter position for the purposes of this motion, and assuming that no appeal has been taken from the decree of the court below establishing the lien of Roebling’s Sons Co., the motion of the plaintiff is, nevertheless, not well taken, because the Roebling’s Sons Co. is not an adverse party on such appeal, within the meaning of the rule sought to be invoked. Its interests are not in conflict with a reversal or modification of the decree so far as the plaintiff is concerned. Its rights would not be injuriously affected if defendant should prevail on this appeal, and the decree establishing plaintiff’s lien should be reversed, but, on the contrary, it would be benefited thereby. In such case the security for the payment of its lien would be increased, and it would not be compelled to share with the plaintiff in the proceeds of the property upon which it is claiming a lien. Its lien was established by decree of the court below, and the property decreed to be sold thereunder; and, unless the Noonday Mining Co. has perfected an appeal from such decree, it is conclusive upon the rights of the parties, and can in no way be affected by the appeal which has been taken from the decree establishing the plaintiff’s lien. If, -upon the hearing in this court, the decree in favor of plaintiff shall be affirmed, the interests of Roebling’s Sons Co. will not be affected; and if it is reversed, and the complaint dismissed, then in such case said company would be benefited by the appeal ; so that, whatever may be the rule in reference to the service of 'a notice of appeal under-the circumstances disclosed by this record, the plaintiff cannot take advantake of any defect therein so far as the attempted appeal from the decree in favor of Roebling’s Sons Co. is concerned ; and plaintiff’s motion to dismiss must be overruled. Motion Overruled.

Mr. O. P. Coshow, for the motion. Messrs. John W.Whalley, Andrew M. Crawford, and Wm. R. Willis, contra.

Decided 31 July, 1899.

On Motion for Leave to Withdraw an Appeal Bond.

2. This is a motion for leave to withdraw from the files of this court an undertaking on appeal, and for an order releasing the sureties thereon. When the appeal was taken, an undertaking was filed for all damages, costs and disbursements which might be awarded on the appeal, and, as the appellant supposed and was advised, for a stay of proceedings .also. Thereafter the respondent caused an execution to be issued, and upon a hearing relating thereto before the circuit judge it was decided that the undertaking was not sufficient to stay proceedings, and thereupon the appellant caused to be filed an amended undertaking on appeal, and for a stay of proceedings also, and now desires to withdraw the one first filed. But we do not think the motion therefor should be allowed. These undertakings are voluntary obligations, and are a part of the record in the case, and we ought not to determine, or seem to determine, the rights of the sureties on the respective undertakings as among themselves, or their liability to the respondent, upon a motion of this character. The motion is therefore denied. Motion Overruled.