Bennett v. Minott

• Decision Date: 01 April 1895
• Citation: 39 P. 997,28 Or. 339
• Parties: BENNETT v. MINOTT et al.
• Court: Oregon Supreme Court

39 P. 997

28 Or. 339

BENNETT v. MINOTT et al.

Supreme Court of Oregon

April 1, 1895

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Action by Sanford Bennett against T.S. Minott and others. There was a judgment for plaintiff, and defendant the Coos Bay Hardware Company appeals. On motion to dismiss. Denied.

W.R. Willis, for appellant.

J.W Bennett, for respondent.

PER CURIAM.

This is a motion to dismiss an appeal. The court, having found that a certain stock of hardware had been fraudulently transferred by the defendants T.S. Minott and Lizzie H. Minott to the defendant the Coos Bay Hardware Company, decreed that the proceeds of the sale of said goods, in the hands of the receiver, be applied to the payment of judgments against the defendant T.S. Minott, in favor of plaintiff and other creditors, from which decree the Coos Bay Hardware Company appeals, but does not make the defendants T.S. Minott or Lizzie Minott parties thereto. The notice of appeal was filed August 30, 1894, and the proof of service indorsed thereon is as follows: "Due service and receipt of a copy hereof admitted after filing, this 28th day of August, 1894. J.W Bennett, Attorney for Plaintiff." It is contended (1) that the indorsement does not show the place of service; and (2) that T.S. Minott and Lizzie H. Minott are adverse, and therefore necessary parties to the appeal.

1. The service of a notice of appeal may be made either upon the party or upon his attorney of record residing in the county where the trial was had; but, when the attorney resides outside of such county, the service can be made only upon the adverse party. Lindley v. Wallis, 2 Or. 203; Rees v. Rees, 7 Or. 78; Printing Co. v. Reeves (Or.) 38 P. 622. The proof of service of a notice of appeal may be made by the sheriff of the county (Hill's Code, §§ 54, 527), or by the written admission of the adverse party; but, in case of service by the latter method, the admission must state the time and place of service ( Id. § 61), which must be indorsed on the notice when filed, or the appeal is not perfected. Briney v Starr, 6 Or. 207. The admission of the service of a summons must show the time and place of service; otherwise no advantage could be taken of the defendant's default in failing to answer. But the place of service of a notice of appeal is, in general, not required to be specifically set forth, although it is otherwise as to time. Elliott App.Proc. § 179. The transcript shows that J.W. Bennett was the attorney for the plaintiff in the trial of the suit in Coos county, and, nothing appearing to the contrary, it will be presumed that he was a resident of the county, in which he appeared as counsel ( Roy v Horsley, 6 Or. 270), and that he acknowledged service of the notice of appeal where the papers show the venue to be laid (Elliott, App.Proc. § 179). The place of service not having been stated, it will therefore be presumed to have been in Coos county.

2. The defendants T.S. Minott and Lizzie H. Minott, though proper were not necessary, parties to the suit. Neither of them has any interest, either legal or equitable, in the property, and neither could be prejudiced by the decree which the plaintiff seeks to obtain. Blanc v. Mining...