Crumbley v. Crumbley

• Decision Date: 13 January 1920
• Parties: CRUMBLEY v. CRUMBLEY.
• Court: Oregon Supreme Court

186 P. 423

94 Or. 617

CRUMBLEY v. CRUMBLEY.

Supreme Court of Oregon

January 13, 1920

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Mary C. Crumbley against J. S. Crumbley. From a portion of the decree rendered, plaintiff appeals. Affirmed.

A. S. Dresser and H. A. Webster, both of Portland, for appellant.

B. F Mulkey and W. T. Hume, both of Portland, for respondent.

BURNETT J.

This is a divorce case. The parties were married January 7, 1891. They have three sons, well above the age of majority, and a fourth son said to be 14 years old. Two daughters, one twelve and the other 8 years of age, complete the family. The plaintiff accuses the defendant of cruel and inhuman treatment, rendering her life burdensome. The specifications range from the application to her of opprobrious epithets impugning her chastity, through uncouth table manners, to his burning the late periodicals. A conspicuous feature of the complaint is a long list of the defendant's real property, coupled with the plaintiff's demand for one-third of it and for liberal alimony. The answer flatly denies all allegations of the complaint which impute misconduct to the defendant. Some minor questions are raised about the quantity of his interest in some tracts of the realty mentioned, but they are not important. The defendant makes counter charges of cruelty, such as the plaintiff's calling him a scurrilous name, indicating that his ancestry was of canine origin, and that she expressed her contempt of him because of his occupation of fisherman, logger, and lumberman, and berated him with sundry vituperative epithets not necessary here to relate. In substance, the answer charges also that the parties did not agree on the subject of the family birth rate; that, although both of them are healthy and vigorous, she practiced the doctrines of Malthus while he desired to be fruitful, to multiply and replenish the earth, according to their capabilities, with the result that the practice of the function by which the race is perpetuated was permitted by her only under exacting and repulsive conditions. The result of the hearing was a decree awarding the plaintiff a divorce, the custody of the minor children, together with a money allowance of $10 per month for the support of each of them until the age of 18 years is reached, as well as $200 as attorney's fees. As a disposition of the real property, the decree awarded to the plaintiff an undivided eighth interest in what is known as Horseshoe Island, in Multnomah county, Or., an 80-acre tract in Wahkiakum county, Wash., and lot 10, in block 1, of East Portland Heights, in the City of Portland, Or. It also adjudged "that the defendant is the owner in his own individual right in fee" of sundry tracts of land described in detail in the decree.

The plaintiff appealed only from that part of the decree declaring the defendant to be the owner in severalty of the parcels of land therein described. Although it is stated in the defendant's brief that he appealed from the whole decree, there is no evidence in the record before us to support that assertion.

There is an utter absence of any copy of notice of appeal or undertaking on appeal, or abstract, in his behalf. From this we are bound to conclude that, if he ever appealed, he afterwards abandoned it by failing to file his transcript or abstract in this court within 30 days after perfection of his appeal. Laws 1913, c. 320.

Not having appealed, the defendant is deemed to be satisfied with the decree as it stands, and he is in no position to attack it.

On the other hand, the plaintiff's appeal from a specific part of it is sanctioned by chapter 319 of Laws of 1913. That the party who has not appealed cannot obtain here a modification favorable to himself of the decree from which the other litigant has appealed is taught by Shook v. Colohan, 12 Or. 239, 6 P. 503; Shirley v. Burch, 16 Or. 83, 18 P. 351, 8 Am. St. Rep. 273; Thornton v. Krimbel, 28 Or. 271, 42 P. 995; Cooper v. Thomason, 30 Or. 162, 45 P. 296; Board of Regents v. Hutchinson, 46 Or. 57, 78 P. 1028; McCoy v. Crossfield, 54 Or. 591, 104 P. 423; Bank of Commerce v. Bertrum, 55 Or. 349, 104 P. 963, 106 P. 444; Flinn v. Vaughn, 55 Or. 372, 106 P. 642; Caro v. Wollenberg, 83 Or. 311, 163 P. 94.

Imputing satisfaction with the decree to the defendant, however, does not prevent him from defending it against the attack of the plaintiff, but he cannot go beyond merely supporting it. Landram v. Jordan, 203 U.S. 56, 27 S.Ct. 17, 51 L.Ed. 88; Southern Pine Lumber Co. v. Ward, 208 U.S. 126, 28 S.Ct. 239, 52 L.Ed. 420; O'Neil v. Wolcott Mining Co., 174 F. 527, 98 C. C. A. 309, 27 L. R. A. (N. S.) 200. In Inman v. Henderson, 29 Or. 116, 45 P. 300, the trial court had established certain materialmen's liens as against a property owner. Another feature of the litigation was the question of the validity of those very liens as against a mortgagee who had put them in issue by the traverse in his answer. The lienors, who alone appealed, contended that inasmuch as their demands had been sustained as against the property owner, through whom the mortgagee claimed, and the owner had not appealed, their liens could not be opposed in this court by the mortgagee, who had not appealed. It was decided, however, that "the mortgagee, having denied by its answer the validity of the mechanics' liens, may insist on this appeal that they are void as against it, for any sufficient reason appearing from the record, and that it was not compelled to appeal from the decree against Mrs. Henderson to raise that question." So, in the instant case, the fact that the plaintiff has appealed from part of the decree, and the defendant has not appealed, does not operate to deliver him in chains as to the spoiler and to charge him as not resisting.

The plaintiff is here seeking further advantage over the defendant. Not content with what the

trial court gave her, she wants more. Her right to additional relief must depend upon equitable considerations to be derived from a perusal of the whole record for, as said in Bush v. Mitchell, 28 Or. 92, 96, 41 P. 155, 156, "an appeal from a part of a decree must necessarily bring to the appellate court the whole decree, and, while the part appealed from may be affirmed, modified, or reversed, the portion not reviewed will be affirmed. The whole cause being tried here de novo, a complete decree must be rendered in this court." The clear deduction from the foregoing citations is that on an appeal from a part of a decree, the whole record may be considered to determine whether that portion of the decree ought to have been rendered; that the quest of the appellate court is controlled so that the part not appealed from must stand as a constant quantity in making up the final result; that the party who did not appeal cannot obtain from this court a decree more favorable to him than that rendered by the trial court; that he may resist any change in the decree, using for that purpose anything disclosed by the record of the whole case; and that the appellant, having come into ...