Fennell v. Hauser ( 1933 )

Petition for rehearing denied January 2, 1934 ON PETITION FOR REHEARING (28 P.2d 245) On motion to dismiss appeal. The respondent, Ray Fennell, has filed a motion to dismiss the appeal in this action "on the ground that the court has no jurisdiction to hear or consider the said appeal, for the reason that the order appealed from by the appealing defendants was not a final order, inasmuch as the controversy was left undetermined as to the remaining defendants who did not appeal".

In support of this motion the respondent relies uponWatkins v. Mason, 11 Or. 72, and Abrahamson v. NorthwesternPulp Paper Company, 141 Or. 339 (15 P.2d 472,17 P.2d 1117).

Neither of the above cases involved an appeal from an order granting a new trial. In Watkins v. Mason, supra, judgment was recovered against O.P. Mason and Mary Mason, his wife, before a justice of the peace, and on appeal to the circuit court judgment on demurrer was entered in favor of Mary Mason before the determination of the case as to O.P. Mason. From the judgment of the circuit court Watkins appealed to this court, and a motion was filed to dismiss the appeal as to Mary Mason because it was not taken within six months from the entry of the judgment on demurrer in her favor, although the appeal was taken within six months from the entry of the judgment as to O.P. Mason. In denying the motion, the court said: "The cases hold, however, that an appeal lies only when the controversy as to all the parties to the action has been finally determined."

In Abrahamson v. Northwestern Pulp Paper Company, supra, the suit was instituted by numerous plaintiffs against some eleven defendants. Upon motion by three of the defendants the amended complaint was stricken as to them and the plaintiffs were granted a definite time in which to file a further amended complaint. On their failure to do so, orders were made dismissing the suit as to these three defendants, and from such orders an appeal was prosecuted to this court. In dismissing the appeal, this court said:

"The question involved is whether the orders of dismissal are appealable orders in the light of the fact that no order of dismissal was made as to answering defendants, or as to the other defendants who have appeared by motion to strike the original complaint. An appealable order is a final order: Article VII, section 6, constitution of Oregon. The legislature has not declared that an order of dismissal as to part of the defendants in a case shall be deemed a final order where, as in this case, no order of dismissal has been made as to the other defendants."

Farther on in the opinion the court remarked:

"A half a century ago, this court announced the rule that an appeal lies only when the controversy as to all the parties to the action has been finally determined:" citing the case of Watkins v. Mason, supra.

Prior to the amendment of § 547, B. C. Code, in 1907 (Laws 1907, chapter 62), relating to appeals, an order granting a new trial was not appealable: Fisk v. Henarie, 15 Or. 89 (13 P. 760), on the ground that such an order did not affect a substantial right or determine the action so as to prevent a judgment or decree therein. In 1907, however, the law was amended so as to grant to litigants the right to appeal "from an order setting aside a judgment and granting a new trial" and the statute especially provided that "for the purpose of being reviewed on appeal," such an order "shall be deemed a judgment or decree". See § 7-501, Oregon Code 1930.

Since the law expressly gives a litigant the right to appeal from an order granting a new trial, it is unnecessary to determine whether or not such an order is final. The decisions relied upon by the respondent involved the question of whether or not the orders appealed from were final, and not whether or not an appeal could be prosecuted from an order made appealable by statute. What was said in those cases must be read in the light of the facts therein involved.

The fact that some of the defendants in the case now before us filed motions for a new trial and therefore must be considered as acquiescing in the order granting a new trial, thus precluding them from appealing therefrom, should not prevent those defendants who opposed such motions from appealing. To give any other construction to the amendment above referred to would be to annul, in part at least, the purpose sought to be accomplished by the legislature, i.e., to permit a litigant to test the correctness of the trial court's ruling in granting a new trial, without the additional expense and delay incident to a new trial.

The motion to dismiss the appeal is denied.

On petition for rehearing.

The respondent, Fennell, petitions that, in the event that the motion to dismiss the appeal is denied, a rehearing be granted as to the appellant Hauser. In the petition it is stated that this court erred in holding (1) that the erroneous instructions of the trial court as to separate verdicts against the several defendants did not in any way mislead the jury as to its verdict in favor of the defendant Hauser; and (2) that the pleadings and evidence justified the submission to the jury of the question of the defendant Hauser's liability to the plaintiff.

Four forms of verdict were submitted to the jury. The first form was for a verdict in favor of the plaintiff and against all the defendants, with the amount left blank. The second form permitted the jury to find in favor of the plaintiff and against the several defendants and was the one used by the jury in finding in favor of the plaintiff and against all the defendants except Hauser, for different amounts. The third form was to be filled out in the event that the jury found in favor of some, but not all, of the defendants, and was used as to defendant Hauser. The fourth form was to be used in the event that the jury found in favor of all the defendants. In referring to the second form, the one quoted in our former opinion, the court, among other things, stated: "Now, this is the form of verdict used by you in case you find for the plaintiff and against some, but not all, of the defendants."

The respondent filed a motion for a new trial, based on the assertion that the court erred in permitting the jury to find against some of the defendants in separate amounts, but he now contends that the trial court erred in not extending this instruction, which he formerly claimed to be objectionable, to include all the defendants. It is stated by counsel for respondent, in referring to the above quoted part of the instruction, that "this instruction made it necessary for the jury, before it could find any separate verdicts, to eliminate at least one of the defendants. The court, however, clearly told the jury that it could not thus find separately against each and all of the defendants". The error formerly complained of, relative to this instruction, consisted in the court's stating to the jury that it could find for different amounts against some of the defendants, and not in the fact that the court failed to advise the jury that it could find against all the defendants in varying sums. We fail to see how the respondent could have been benefited by extending this erroneous instruction to include all the defendants. In view of all the instructions given, that part of the charge to the jury pointed out by the respondent could not in any way have prejudiced the respondent, in so far as Hauser was concerned.

In support of his second reason for urging a rehearing, the respondent refers to Hauser's affirmative answer and to some of his testimony, and states that this answer, together with the evidence, entitled the plaintiff to a verdict against Hauser in a substantial amount. This is followed by the statement that "the plaintiff was in no position to ask for an instructed verdict against Hauser, simply because the amount of his liability was a question for the jury * * *".

The respondent, in his petition for a rehearing, does not call our attention to any particular item or items in the various assigned claims included in the amended complaint, for which the defendant Hauser was liable. He does, however, expressly admit that the amount of Hauser's liability should have been submitted to the jury.

We have again reviewed all of Hauser's testimony, a part of which only was referred to in respondent's petition, and we adhere to our former opinion that the question of Hauser's liability and the amount, if any, for which he was liable, was properly submitted to the jury.

The petition for a rehearing is therefore denied.

KELLY, J., not participating.