Silbaugh v. Guardian Building & Loan Ass'n

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The plaintiff-respondent moves to dismiss this appeal for want of jurisdiction. It appears, from the record upon the appeal, that the judgment appealed from was a joint and several judgment in favor of the plaintiff and against all the three defendants above named for the sum of $17,391.20, with accrued interest and the costs and disbursements of the action. From this judgment, the Equity Finance Company appealed without joining its codefendants as appellants and without serving them with the notice of appeal, nor was the notice of appeal addressed to them or either of them.

Section 7-503, Oregon Code 1930, provides, in part, as follows:

"(1) * * * If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place where he or they may be found, and file the original with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered. Such notice 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 or circuit court, as the case may be, from the judgment, order or decree, or some specified part thereof."

Under this statute, the notice of appeal must show on its face that all parties whose interests may be affected by the appeal have either joined as appellants or have been named and served as adverse parties with a copy of the notice and proof of such service must be indorsed on the notice of appeal. *Page 291

It was held in Southwestern Surety Ins. Co. v. Foster , 85 Or. 206 , 165 P. 1176 , that:

"* * * Where written notice of appeal is adopted as the means of bringing a case before this court for review the statute requires it to be served upon all adverse parties who have appeared in the action or suit."

To the same effect, see Templeton v. Morrison , 66 Or. 493 , 131 P. 319 .

The term "adverse party", as used in the statute, means, as was said in French v. McKean , 81 Or. 683 , 160 P. 1151 :

"a party whose interest in relation to the judgment or decree is in conflict with the modification or reversal sought by the appeal."

In Lane v. Wentworth , 69 Or. 242 , 133 P. 348 , the court said:

"It has constantly been determined by this court that, although parties are both plaintiffs or both defendants, yet if an appeal would unfavorably affect the rights of one of them, as determined by the decree appealed from, he is an adverse party as respects his co-plaintiff or co-defendant, and that the jurisdiction of this court depends upon service of the notice upon all such parties."

This being an appeal from a joint and several judgment against the three defendants in the action, a reversal of the judgment appealed from as to one of them would leave the judgment to stand and be enforceable against the other two non-appealing defendants.

As pointed out, the failure of the appellant to comply with the statute in the particulars above referred to is jurisdictional and deprives this court of the power to review this judgment. The appellant, however, *Page 292

in effect, contends that, because the three defendants were represented in the circuit court by the same attorneys who now represent the appealing defendant, the knowledge of such attorneys that the appeal had been taken by one of the defendants was notice to the non-appealing defendants and, therefore, it was unnecessary to serve them with notice of appeal.

It is a general rule, and one applicable here, that a client will not be affected by notice or knowledge of facts acquired by an attorney while acting as an attorney for another client: Neppach v. Jordan , 13 Or. 246 , 10 P. 341 ; 3 C.J., 1224; 2 R.C.L., 964.

The appellant also contends that the judgment against the two non-appealing defendants is void for certain alleged reasons, but these are matters which the court has no right to consider upon a motion to dismiss the appeal, since they are matters which relate to the merits of the case and have nothing to do with the validity of the appeal itself. As said in Meaney v. State Industrial Accident Commission , 113 Or. 371 , 375 , 227 P. 305 , 232 P. 789 :

"* * * It has been repeatedly held in this court that the merits of the case will not be considered on a motion to dismiss an appeal: Stacey v. McNicholas, 76 Or. 167 , 173 , 175 , 144 P. 96 , 148 P. 67 ; Mendenhall's Will, 43 Or. 542 , 72 P. 318 , 73 P. 1033 ."

The appeal, therefore, must be dismissed.