U. S. Investment Corp. v. Portland Hospital , 40 Or. 523 ( 1901 )

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 or 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.