Mandate recalled and order dismissing appeal vacated March 12, 1940 ON MOTION TO RECALL MANDATE (99 P.2d 1017) On January 16, 1940, the court entered an order allowing the motion of the plaintiff-respondent *Page 293 to dismiss the appeal of the defendant-appellant, Equity Finance Company, a corporation. The basis of the ruling, as shown by the court's opinion, 97 P.2d 943, was that the appealing defendant had not joined its co-defendants as appellants nor served them with notice of appeal, and "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."
Thereafter the appellant filed a motion to vacate the order of January 16, 1940, which was denied, and the mandate of this court was issued and forwarded to the clerk of the court below pursuant to Rule 28. The appellant has now filed a motion to recall the mandate and with it another motion to vacate the order of January 16, 1940.
One of the grounds of these motions is that "the court erred in holding that it could not consider the validity of the judgment against non-appealing defendants in considering a motion to dismiss an appeal."
It appears from an examination of the briefs of the parties that the appellant contended, when the matter was originally presented, that the non-appealing defendants were not adverse parties under § 7-503, Oregon Code 1930, because it could be determined from the face of the record that the judgment as to them was void. It was urged that the judgment was void as to the defendant, Guardian Building and Loan Association, because that corporation was insolvent and in the possession of the corporation commissioner as statutory receiver. In that situation, the appellant argued that, under the provisions of Ch. 328, Oregon Laws *Page 294 1933, the action could be maintained and judgment recovered only against the corporation commissioner.
And it was said that no valid judgment could be entered against the defendant, Carey, corporation commissioner, because he had been discharged as receiver at the time of the rendition of the judgment, and had ceased to be corporation commissioner.
It was on these questions and some others not now necessary to be mentioned that the parties, in their briefs, joined issue.
We declined, however, to determine whether the judgment was void as to the non-appealing defendants, saying that "these are matters which the court has no right to consider upon a motion to dismiss the appeal, since they are matters that go to the merits of the case and have nothing to do with the validity of the appeal itself."
The rule is well established, as stated in our former opinion, quoting from French v. McKean, 81 Or. 693,160 P. 1151, that "a party whose interest in relation to the judgment or decree is in conflict with the modification or reversal sought by the appellant" is an adverse party entitled to be served with notice of appeal under § 7-503, Oregon Code 1930. Whether such conflict exists here must be determined from the face of the record, and, if the judgment against the non-appealing defendants is valid, then they are adverse parties because, should the judgment against the appellant be reversed, the non-appealing defendants would lose the right of contribution which otherwise they could enforce.
On the other hand, we think, after further consideration, that, if it can be demonstrated from the face of the record that the judgment as to the non-appealing defendants is void, there would be no reason for making *Page 295 them parties to the appeal, and the motion to dismiss the appeal should be denied. See Alliance Trust Co. v. O'Brien, 32 Or. 333, 50 P. 801, 51 P. 640, where, in determining that it was unnecessary to serve certain defendants with notice of appeal, a personal judgment against them, based on service by publication, was disregarded.
The argument as to the validity of the judgment against the non-appealing defendants has taken a wide range, and the questions raised are, we believe, of sufficient importance to warrant an oral hearing. The motion to dismiss the appeal was not presented until the briefs of the parties on the merits had been filed. Under like circumstances, except where the question was free from all doubt, we have heretofore followed the practice of deferring decision of the motion to dismiss until the hearing on the merits, and we are of the opinion that that course should be pursued in this case.
The motion to recall the mandate will therefore be allowed, and the order dismissing the appeal vacated, with leave to the parties to present and argue the motion to dismiss at the time of the hearing on the merits.