Murray v. Lamb , 168 Or. 596 ( 1942 )

Action by Catherine A. Murray against David E. Lamb, variously known as R.O. McCorkle, D.E. Lamb, and Duke of Lamont, and others, for deceit. From an order entered April 11, 1941, dismissing the action as to defendant D.E. Lamb, and an order entered April 18, 1941, dismissing as to defendants The Sanctuary of Our Sorrowful Mother and others, plaintiff appeals. On motions to dismiss the appeals.

Appeal from order of April 11 dismissed, and motions to dismiss appeal from judgment and order of April 18 denied.

REVERSED. REHEARING DENIED. This case is before us upon motions of appearing defendants and respondents to dismiss plaintiff's appeals.

The question involved being one not heretofore considered by this court, a written opinion is deemed appropriate.

This is an action based upon alleged deceit. On or about October 16, 1940, plaintiff filed her fourth amended complaint in the circuit court. On April 1, 1941, the demurrer thereto of one of the defendants, namely, D.E. Lamb, was sustained upon the ground of defect of parties defendant. On April 11, 1941, plaintiff having failed to plead further, an order of dismissal as to defendant, D.E. Lamb, was entered and a judgment for costs and disbursements in favor of said defendant, D.E. Lamb, was rendered and entered. On April 30, 1941, plaintiff filed a notice of appeal from said judgment in favor of defendant Lamb. On said April 30, 1941, plaintiff also filed an undertaking on appeal.

On April 18, 1941, an order of dismissal was entered as to defendants, The Sanctuary of our Sorrowful Mother, an Oregon corporation, Alexius V. Croke, Jerome DePencier, individually, and as Provincial of the Order of Servites of America, an unincorporated religious body, Petritius Broanahan, Elton Watkins and Wallie T. Baker, and a judgment against plaintiff in favor of said last named defendants was rendered and entered.

On the 30th day of April, 1941, plaintiff filed a notice of appeal from the order and judgment, last above mentioned, and at said time also filed an undertaking on appeal from said last mentioned order of dismissal and judgment.

Defendants Marian Lamb and W.A. Miller were not served with summons and made no appearance in said action. An attempted service was made upon defendant, W.F. Pettibone, but such service was quashed and, except for his special appearance asking for the quashal of said attempted service, defendant Pettibone has not appeared. No other service of summons than the attempted service mentioned has been made upon said Pettibone, and it appears by his affidavit that said Pettibone is a nonresident of Oregon. The action has been dismissed as to all defendants, except the three last named; and judgment against plaintiff has been rendered and entered for costs and disbursements in favor of all of the defendants except said three defendants last named.

The motions to dismiss plaintiff's appeals are based upon the assumption that neither of the judgments mentioned is an appealable order.

The general rule is that a judgment determining the rights of some of the parties only is not final and hence not appealable. Watkins v. Mason, 11 Or. 72, 4 P. 524; Abrahamsonv. Northwestern Pulp and Paper Co., 141 Or. 339, 15 P.2d 472,17 P.2d 117; Durkheimer Investment Co. v. Zell et al.,161 Or. 434, 90 P.2d 213.

This general rule is subject to the qualification that if the judgment "disposes of the case as to all parties who have been served or appeared it may be final for purposes of appeal although other parties were not served and did not appear and the action as to them is undisposed of". Vol. 1, Freeman on Judgments, (5th Ed.) section 6 at page 60, and cases cited in note 6; 4 C.J.S. Subject, Appeal and Error, p. 201, section 104, and cases cited in note 59; 3 C.J., Subject Appeal and Error, p. 463, note 64 and cases there cited.

For these reasons, the appeal from the order of April 11, 1941, is dismissed; and the motions to dismiss plaintiff's appeal from the judgment and order of April 18, 1941, are denied and overruled.

ON THE MERITS (124 P.2d 531)