Cooper Mfg. Co. v. Delahunt

• Decision Date: 10 January 1898
• Citation: 36 Or. 402,51 P. 649
• Parties: COOPER MFG. CO. v. DELAHUNT et al.
• Court: Oregon Supreme Court

51 P. 649

36 Or. 402

COOPER MFG. CO. v. DELAHUNT et al.

Supreme Court of Oregon

January 10, 1898

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit to foreclose mechanic's lien by the Cooper Manufacturing Company against M.J. Delahunt and others. From a judgment of dismissal the plaintiff appeals. The defendant M.J. Delahunt moves to dismiss the appeal. Motion denied.

Geo. A. Brodie, for the motion.

Dell Stuart, opposed.

PER CURIAM.

This is a motion to dismiss an appeal. The transcript shows that plaintiff commenced this suit to foreclose a lien upon certain real property of the defendant M.J. Delahunt, for material furnished to the defendant John Chandler, who, by virtue of a contract with Delahunt, had charge of the construction of a house for the latter on said premises. Chandler was made a party, and personally served with summons, but made default, and, the cause being tried on the issues raised by other parties, the court dismissed the suit, and plaintiff appeals, but did not serve Chandler with notice thereof. The question presented for consideration is whether he is an "adverse party," within the meaning of the statute, upon whom the notice of appeal must be served. Hill's Ann.Laws Or.§ 537. The term "adverse party" has been held to mean one whose interest in relation to the decree complained of is in conflict with the modification or reversal sought by the appeal. Lillienthal v. Caravita, 15 Or. 339, 15 P 280; Hamilton v. Blair, 23 Or. 64, 31 P. 197; The Victorian, 24 Or. 121, 32 P. 1040; Moody v. Miller, 24 Or. 179, 33 P. 402; Jackson Co. v. Bloomer, 28 Or. 110, 41 P. 930. The statute makes every contractor having charge of the construction of any building, the agent of the owner, for the purpose of binding the latter for the value of material furnished to be used in, or labor performed upon, such building, at the request of the former. Hill's Ann.Laws Or. § 3669. The contract is therefore entered into between the persons furnishing the materials or performing the labor and the owner, and while, perhaps, the contractor may have brought them together, he is not a necessary party to a suit to foreclose a mechanic's lien, unless a personal decree is sought against him by the owner. Osborn v. Logus, 28 Or. 303, 37 P. 456, 38 P. 190 and 42 P. 997. If the owner has settled with the contractor in full, he shall be entitled to recover from the latter any payment, in...