Davis v. First Nat. Bank of Albany

• Citation: 161 P. 93,86 Or. 474
• Parties: DAVIS ET AL. v. FIRST NAT. BANK OF ALBANY ET AL.
• Decision Date: 28 November 1916
• Court: Supreme Court of Oregon

161 P. 93

86 Or. 474

DAVIS ET AL. v. FIRST NAT. BANK OF ALBANY ET AL.

Supreme Court of Oregon

November 28, 1916

Appeal from Circuit Court, Linn County; Wm. Galloway, Judge.

Cross-bill by W. H. Davis and Worth Huston against the First National Bank of Albany, Or., Alfred C. Schmitt, and others. From a decree for plaintiffs, the named defendants appeal. Motion to dismiss appeal denied.

Hewitt & Sox and Hill & Marks, all of Albany, for the motion. Schmitt & Schmitt, of Portland, opposed.

PER CURIAM.

The First National Bank of Albany, Or., commenced an action against W. H. Davis and Worth Huston to recover the amount of their promissory note. They answered admitting the allegations of the complaint and as plaintiffs also filed a crossbill in equity, making as parties defendant Alfred C. Schmitt, Linnhaven Orchard Company, a corporation, E. C. Roberts, Chas. H. Wieder, Geo. M. Crowell, Owen Bean, F. J. Fletcher, and J. M. Hawkins, admitting the execution of the note, but alleging it was in fact the note of the Linnhaven Orchard Company and that the makers and the defendants who were made parties to the suit were sureties for that company. The trial court rendered a decree granting the relief prayed for in the cross-bill, and the First National Bank and Alfred C. Schmitt appealed, but they did not cause the notice to be served upon the defendants Wieder, Crowell, or Hawkins. The plaintiffs' counsel, contending that the parties who were not served with the notice are adverse, move to dismiss the appeal for that reason.

By the decree Alfred C. Schmitt and the other parties who were made defendants in the cross-bill were held to be jointly and severally liable for the payment of the promissory note which was executed by the plaintiffs to the bank. A reversal or modification of that decree would be an advantage to the parties who were not served with the notice of the appeal, and for that reason they are not adverse. Lane v. Wentworth, 69 Or. 242, 133 P. 348, 138 P. 468; United States National Bank v. Shefler, 77 Or. 579, 143 P. 51, 152 P. 234.

The motion to dismiss the appeal is denied.