Conrad v. Pacific Packing Co.

• Decision Date: 17 July 1899
• Citation: 57 P. 1021,34 Or. 337
• Parties: CONRAD et al. v. PACIFIC PACKING CO. et al.
• Court: Oregon Supreme Court

57 P. 1021

34 Or. 337

CONRAD et al. v. PACIFIC PACKING CO. et al.

Supreme Court of Oregon

July 17, 1899

Appeal from circuit court, Multnomah county; Henry E. McGinn, Judge.

Bill by Peter Conrad and others against the Pacific Packing Company and others. From a decree granting plaintiffs a part of the relief sought, some of the defendants attempted to appeal. Dismissed.

G.G. Bingham, for appellants.

J.N Teal, R. Citron, and M.G. Munly, for respondents.

MOORE J.

This is a motion to dismiss the appeal. One of the objects of the suit is to set aside certain mortgages executed by the defendant the Pacific Packing Company, an insolvent corporation, which, if valid, are liens upon its real property to secure the respective sums in the order stated, and in favor of the following named defendants (1) Charles W. La Barre, $1,700; (2) Allen R. Joy, $6,500 and (3) Mary Young, $3,500. The answer alleges that Mary Young's mortgage was given to indemnify her for liability assumed as security on a note of $3,000 executed by the corporation to the Commercial National Bank of Portland, to which the mortgage had been assigned as collateral security. No formal order was made by which said bank became a party but it appeared by counsel, and the court finds that it submitted itself to the jurisdiction of the court. The cause, being at issue, was tried, and from the evidence taken the court found that Joy's mortgage was invalid, and decreed that the real and personal property of the corporation be sold, and that the proceeds arising therefrom be applied as follows: (1) To La Barre's mortgage, the sum of $1,700; (2) to the Commercial National Bank, $3,000, and interest; and (3) to the other bona fide creditors of the corporation pro rata, those having securities or prior liens being first entitled to the benefit thereof. From such portions of the decree as affect the validity of Joy's mortgage, a part of the defendants attempted to appeal, but failed to serve the notice thereof upon the Commercial National Bank or Mary Young. The respondents' motion, one ground of which is "that the notice of appeal has not been served upon all of the adverse parties," was heretofore overruled, with leave, however, to reargue it at the trial of the case on its merits. An appeal is taken by the appellants causing a notice to be served on the adverse party. Hill's Ann.Laws, § 537. An adverse party, within the meaning of this section,...