Van Lydegraf v. Tyler ( 1929 )

IN BANC.

MOTION TO DISMISS APPEAL DENIED. Respondent moves to dismiss the appeal of the defendants, Oscar H. Zeller and Marie L. Zeller, upon two grounds: first, that Vernon O. Tyler, one of the defendants who was not served with a notice of appeal was, within the meaning of Section 550, Or. L., an adverse party to his appealing co-defendants, and, second that the notice of appeal was not sufficient to describe the decree appealed from with reasonable certainty. We find no merit in either contention.

The object of the suit was the foreclosure of three mechanics' liens. The complaint alleged that the defendant Tyler was the record owner of the property against which the liens were claimed, but that, before the improvement was made for which the liens were claimed, he had sold and conveyed the same to the appealing defendants and had no right, title or interest in said property. The record shows, and it is not disputed and Tyler so testified, that Tyler had sold and conveyed the property in question to the appealing defendants and received the full purchase price thereof, and that he had no right, title or claim to the property or to any interest or estate therein. The decree was entered in favor of Tyler and against the appealing defendants, foreclosing the liens and directing the sale of the property in satisfaction thereof.

An adverse party within the meaning of Section 550, Or. L., "is a party whose interest in relation to the judgment, or decree, appealed from is in conflict with the modification, or reversal, sought by the appeal." This was the holding in Conrad v.Pacific Packing Co., 34 Or. 337, 342 (49 P. 659,52 P. 1134, 57 P. 1021) and in the authorities there cited, and this rule has not been changed by any subsequent decision. Under the facts disclosed an affirmance, reversal or modification of the decree appealed from could not in any way affect any right, claim or interest of Tyler in the subject matter of the litigation, and hence he was not an adverse party upon whom service of the notice of appeal was required.

The notice of appeal contained the title of the court and cause in which the decree appealed from was rendered and notified the respondent and his attorney that the defendants, Oscar H. Zeller and Marie L. Zeller, appeal to the Supreme Court of the State of Oregon from the decree rendered in said court and cause on the thirteenth day of July, 1928, and entered of record on the sixteenth day of July, 1928, and stated that the decree was in favor of respondent and against the appealing defendants. It also stated the amounts for which the decree was given and that respondent was decreed to have a first lien upon the premises for said amounts, and particularly described the premises against which the lien was given and directed the sale of said premises to satisfy such amounts, and that the appeal was from the whole of said decree.

The statute provides that the notice of appeal "shall be sufficient if it contains the title of the cause, the names of the parties and notifies the adverse party or his attorney that an appeal is taken to the supreme court or circuit court, as the case may be, from the judgment, order or decree, or some specified part thereof." This notice contained all that the statute required and more and by force of the statute was sufficient. From this it follows that the motion to dismiss the appeal upon both grounds must be denied. MOTION DENIED.