Lane v. Wentworth

Mr. Justice Burnett

delivered the opinion of the court.

1. It is essential to the validity of an appeal that the notice be served on all adverse parties and the original be filed with proof of service indorsed thereon with the clerk of the court in which the judgment, appeal, or order from which the appeal is taken is entered: Section 550, subd. 1, L. O. L. It has often been decided by this court that compliance with this section is jurisdictional. It follows that no jurisdiction was obtained over Mahon by the service of the notice of appeal on Lane, and filing the same in the Circuit Court, having indorsed thereon only the proof of service on Lane.

2. This is not cured by the subsequent filing of a separate paper indicating admission of service; the same not being indorsed upon or attached to the notice of appeal. It is essential, then, to determine whether Mahon is an adverse party. 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 coplaintiff or codefendant, and that the jurisdiction of this court depends upon service of the notice upon all such parties: The Victorian, 24 Or. 121 (32 Pac. 1040, 41 Am. St. Rep. 838); Moody v. Miller, 24 Or. 179 (33 Pac. 402); Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997); Stutter v. Baker County, 30 Or. 294 (47 Pac. 705); Conrad v. Pacific Packing Co., 34 Or. 341-343 (49 Pac. 659, 52 Pac. 1134, 57 Pac. 1021); Cooper Mfg. Co. v. Delahunt, 36 Or. 403, 404 ( 51 Pac. 649, 60 Pac. 1); Hafer v. Medford etc. R. R. Co., 60 Or. 356 (117 Pac. 1122, 119 Pac. 337).

3. We note, however, that, by the terms of the decree appealed from, Wentworth is made liable to the plaintiff antecedently to Mahon; that by the terms of the decision the liability of Mahon is secondary to that of Wentworth; and that only in event of Went-worth’s failure to comply with the judicial settlement is the plaintiff entitled to look to Mahon for satisfaction. Under such conditions the liability of Mahon cannot rise above or be greater than that of Went-worth. If the accountability of Wentworth is extinguished, that of Mahon, as defined by this decree, will also be obliterated. If on the appeal the decree were reversed as to Wentworth, the situation resulting would not be one in which Wentworth would have failed to comply with the decree against him, and it is only in the event of such a lapse on the part of Wentworth that the plaintiff is entitled to look to Mahon by virtue of the decree.

It having been alleged in the complaint that Mahon had transferred all the shares of stock to Wentworth, the court could not rightly direct Mahon to perform the impossible act of transferring- the same shares to the plaintiff. Under the allegations of the complaint, if any transfer of stock is to be made, it must be made by Wentworth. Without intending this to be a decision of the principal questions involved, it is sufficient for the purposes of this motion to say that in no event can the situation be made worse for Mahon than it already is, and a possible modification or reversal of the decree could not but operate in his favor. Consequently, as between himself and Wentworth, Mahon is not an adverse party, and it was not necessary to serve upon him the notice of appeal.

Department 1. Statement by Mr. Justice Ramsey.

This is a suit in equity by I. W. Lane for a decree requiring the defendant, Gr. K. Wentworth, to transfer to the plaintiff 6,500 shares of the capital stock of the Coast Range Lumber Company, or, if he fails or refuses to do so, for a decree against him for the value thereof, etc. The court below rendered a decree in favor of the plaintiff. The defendant Gr. BÁ Went-worth appeals. H. C. Mahon does not appeal. The facts appear in the opinion of the court.

Affirmed.

For appellant there was a brief over the names of Messrs. Coovert é Mannix and Messrs. Stapleton S Sleight, with an oral argument by Mr. R. Sleight.

For respondent there was a brief over the names of Mr. A. E. Clark and Mr. Fred L. Everson, with an oral argument by Mr. Clark.

The motion to dismiss the appeal is overruled.

Motion Overruled.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.