“This view of the circumstances impels us to the conclusion that [the unserved party] was a necessary adverse party and that service of notice of appeal upon her was essential to the jurisdiction of this court.”
How later courts described this case
- “This view of the circumstances impels us to the conclusion that [the unserved party] was a necessary adverse party and that service of notice of appeal upon her was essential to the jurisdiction of this court.”
- services rendered by son entirely attributable to preexisting partnership agreement with mother to manage the family ranch and son did not significantly change course of life by entering into such a partnership
Written by the judges who cited it.
The opinion
On Behearing
( 148 P. (2d) 936 )
Before Bailey, Chief Justice, and Belt, Lusk, Brand and Hay, Associate Justices.
HAY, J.
Prior to submission of this appeal upon the merits, Clarence J. Hunter, the plaintiff-respondent, moved to dismiss the appeal. His motion was based upon the jurisdictional ground that no notice of appeal was served by the appellants upon their eodefendant, Edith E. Allen, who, as he contended, was a necessary party to the appeal. In support of the motion, he relied principally upon the argument that a reversal of that portion of the decree whieh gave respondent only an undivided one-half interest in the joint bank accounts, rather than the whole thereof, which he claimed, would affect adversely the interests of Mrs. Allen, and that, therefore, she was a necessary adverse party. The respondent himself, however, cross-appealed from that
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portion of the decree, and duly served all of the defendants, including the defendant Edith E. Allen, with notice of his cross-appeal. This action upon his part, of course, rendered invalid his chief argument in support of his motion to dismiss. Under the circumstances, it appeared to us, after due consideration, that any modification of the decree that might be made by this court would not affect Mrs. Allen’s interests adversely. We, therefore, denied the motion, upon the authority of the following cases:
United States National Bank v. Shefler,
77 Or. 579 , 143 P. 51 ;
Johnson v. Paulson,
83 Or. 238 , 154 P. 685 ;
Davis v. First National Bank of Albany,
86 Or. 474 , 161 P. 93 ;
Masters v. Bidler,
101 Or. 322, 334 , 199 P. 920 ;
Lidfors v. Pflaum,
115 Or. 142 , 205 P. 277 ;
In re Prince Estate,
118 Or. 210 , 221 P. 554 ;
Adams v. Kennard,
122 Or. 84, 91 , 227 P. 738 .
Subsequent to the rendition of our decision upon the merits (Or. Adv. Sheets, March 14,1944, 147 P. (2d) 213 ), the plaintiff-respondent filed a petition for rehearing, and, in connection therewith, renewed his motion to dismiss, urging new and additional reasons in support thereof. Consideration of such petition led us to the conclusion that we should reexamine the jurisdictional question. Upon this question alone, therefore, briefs were submitted and oral argument followed before the court, sitting at Pendleton.
The decree gave Clarence Hunter, as surviving partner, a half-interest in the personal property, which Avas all that he asked for. The appellants contended that this was error, and that he was entitled only to an interest proportional to his contribution to the partnership capital. So far as the personal property was concerned, therefore, it is apparent that any possible modification of the decree Avould have been advan
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tageous to Mrs. Allen, and, to that extent, she was not an adverse party.
The real property, however, presents a different situation. The lower court’s decree gave each of the heirs, including Mrs. Allen, an undivided one-fifth interest in the Hoad Company lands and the Carey-Spencer lands, whereas our decision gave Clarence, as surviving partner, an undivided one-half interest in those lands, with the remainder to the heirs, including Mrs. Allen, thus reducing Mrs. Allen’s interest from one-fifth to one-tenth. The decree gave Clarence the home ranch, the School Lands and the Desert Claim, whereas our decision gave those lands to the heirs, the result being, in Mrs. Allen’s case, to give her an undivided one-fifth interest therein. The decree gave Clarence the George Hunter homestead, whereas our decision gave him, as surviving partner, an undivided one-half interest therein, with the remainder to the heirs, including Mrs. Allen. The effect of our decision was to dispose of the real property as if all of the parties were before the court. If the interests of the parties were entirely severable, we might eliminate from consideration those which were awarded to Mrs. Allen by the lower court, and proceed to adjudicate the respective rights of the appellants and of Clarence Hunter in the remainder, but this is not the case. Apparently, we cannot do justice to the respondent, Clarence Hunter, and give him what he is entitled to in ‘the premises, without including within the scope of our adjudication the interests of Mrs. Allen in the realty. On the other hand, we cannot deal with Mrs. Allen’s interests, to give or to take away, without creat
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ing a situation under which her interests could be adversely affected.
“The canon established by all our precedents and by which it is determined whether a party is adverse to the appellant is in substance this: that if on the appeal, the interests of a party could be adversely affected, he is entitled to notice of the appeal of another party, in default of which this court will not acquire jurisdiction. On the other hand, if the only possible modification of the decree would better his condition, he is not an adverse party and it is not necessary to notify him.”
Adams v. Kennard,
supra ( 122 Or. 84 , 227 P. 738 ).
This view of the circumstances impels us to the conclusion that Mrs. Allen was a necessary adverse party and that service of notice of appeal upon her was essential to the jurisdiction of this court.
Johnson v. Shasta View L. Co.,
129 Or. 469 , 278 P. 588 ;
Vaughan v. Kolb,
148 Or. 491 , 37 P. (2d) 435 .
The appeal of the defendants Elmer N. Hunter, Ralph G. Hunter, George Hunter and Elmer N. Hunter as administrator of the estate of Malinda A. Hunter, deceased, will be dismissed, with costs. In so far as the cross-appeal of the respondent, relating to the joint bank accounts, is concerned, we adhere to our former opinion.