Collins v. Lantz
| Decision Date | 15 May 1963 |
| Citation | 234 Or. 268,381 P.2d 213,76 Or.Adv.Sh. 711 |
| Parties | Vern COLLINS, dba Vern Collins Plumbing and Heating, Appellant, v. C. A. LANTZ, M. L. Vickery, Juanita Vickery and James M. Vickery, dba Dayton Plumbing and Heating, Dayton Plumbing and Heating, Inc., an Oregon Corporation, and J. D. Annand, Respondents. |
| Court | Oregon Supreme Court |
Al J. Laue, Salem, argued the cause for appellant. With him on the brief were Williams & Skopil, Salem.
Allan G. Carson and Wallace P. Carson, Jr., Salem, argued the cause for respondent Lantz. On the brief were Carson, Carson & Carson, Salem.
Before McALLISTER, C. J., and PERRY, O'CONNELL, DENECKE and LUSK, JJ.
Plaintiff seeks to recover approximately $9,000 expended by him in repairing a steam tunnel which plaintiff alleges was damaged by the negligent conduct of the defendants. Plaintiff appeals from a judgment based upon an order sustaining a demurrer interposed by defendant Lantz.
Plaintiff's complaint alleges that the defendants were negligent in certain particulars and that the negligence of the defendants 'combined, concurred and was the proximate cause of the damages suffered by the plaintiff.' Defendant Lantz demurred on the ground that it appeared upon the face of the complaint that the action was not commenced within the time limited by statute. The demurrer was sustained and a judgment was entered '[t]hat plaintiff take nothing from defendant Lantz by this action; and that said defendant go hence without day; * * * that this action proceed against the other defendants * * *.' Plaintiff appeals from this judgment. Defendant Lantz moves to dismiss the appeal on the ground that the judgment from which the appeal is taken is not a final judgment in this action.
The motion is granted and the appeal is dismissed. The case is controlled by the principle applied in Martin v. City of Ashland, 76 Or.Adv.Sh. 197, 378 P.2d 711 (1963). In that case it was held that a judgment which affects some of the parties only is not a final judgment and is not appealable. In the instant case the judgment sustaining the demurrer did not dispose of the case as to the other defendants. Therefore, it is interlocutory in nature.
The time for filing an appeal will not begin to run until after the case has proceeded to judgment for or against the remaining defendants. Watkins v. Mason, 11 Or. 72, 4 P. 524 (1883).
Appeal dismissed.
To continue reading
Request your trial
-
General Const. Co. v. Oregon State Fish Commission
...meet the statutory requirements of 'appealability.' T. W. Brown v. U.S. Nat'l Bank, 265 Or. 161, 508 P.2d 208 (1973); Collins v. Lantz, 234 Or. 268, 381 P.2d 213 (1963); Durkheimer Inv. Co. v. Zell, 161 Or. 434, 90 P.2d 213 (1939). Defendant argues, however, that this rule should not apply ......
-
Dlouhy v. Simpson Timber Co.
...of Ashland, supra, should be applied here. See Steenson v. Robinson, 236 Or. 414, 385 P.2d 738, 389 P.2d 27 (1964); Collins v. Lantz, 234 Or. 268, 381 P.2d 213 (1963). If the rule results in duplication of effort in some cases, the duplication of effort will occur at the trial court leel, w......
-
Lulay v. Earle
...aside previous order of default as to one of several defendants not appealable until final judgment as to whole case); Collins v. Lantz, 234 Or. 268, 381 P.2d 213 (1963) ('* * * (A) judgment which affects some of the parties only is not a final judgment and is not appealable.'); and McEwen ......
-
Steenson v. Robinson
...dismiss the appeal. Both defendants rely upon Martin v. City of Ashland, 76 Or.Adv.Sh. 197, 378 P.2d 711 (1963), and Collins v. Lantz, 76 Or.Adv.Sh. 711, 381 P.2d 213 (1963), which held that a judgment which affects some of the parties only is not a final judgment and is not We shall first ......