Hamilton v. Blair

• Decision Date: 05 October 1892
• Citation: 23 Or. 64,31 P. 197
• Parties: HAMILTON v. BLAIR et al.
• Court: Oregon Supreme Court

31 P. 197

23 Or. 64

HAMILTON v. BLAIR et al.

Supreme Court of Oregon

October 5, 1892

Appeal from circuit court, Benton county; R.S. BEAN, Judge.

Suit by J.E. Hamilton against T.J. Blair and others to adjust and determine their rights as depositors of wheat. From a decree against three of defendants two of them appeal. Appeal dismissed.

John Burnett, J.R. Bryson, and L. Flinn, for appellants. John Kelsay, J.W. Rayburn, and W.S. Hufford, for respondent.

LORD C.J.

This is a motion interposed by the plaintiff, J.E. Hamilton, and the defendants Thomas Cooper, Marion Cooper, and the Cooper Bros to dismiss the appeal in the above-entitled suit for want of jurisdiction. The motion is urged upon the ground that one of the defendants, the Salem Capital Flour Mills Company, who was a party to the suit in the trial court, but who has not been served with notice of appeal to this court, is a necessary and indispensable party for a full and complete determination of the subject-matter involved in the decree appealed from. It appears from the record that the plaintiff brought a suit in equity against the defendants for the adjustment and determination of their respective rights in reference to a certain quantity of wheat which they had stored in mass in the warehouse of the defendant T.J. Blair. Upon the trial the court below found that the plaintiff and defendants were tenants in common in 26,065 bushels of wheat and the number of bushels each of them had respectively so deposited in the warehouse; that subsequently there occurred a loss or diminution of said wheat so stored and that thereafter the defendants the Salem Capital Flour Mills Company, Hamilton, Job & Co., and J.E. Henkle & Co. took out of the wheat so stored in bulk the full amount of wheat each had respectively deposited, the same being the whole amount of wheat then remaining in said warehouse, and converted the same to their own use, without the knowledge or consent of the other parties to the suit. The court further found that the plaintiff and defendants Thomas Cooper, Marion Cooper, Cooper Bros., and G. Henderson have not received any part or portion of the wheat so stored in said warehouse, and thereafter made a decree in favor of the plaintiff and the defendants Thomas Cooper, Marion Cooper, Cooper Bros., and G.H. Henderson, and against the defendants the Salem Capital Flour Mills Company, J.E. Henkle & Co., and Hamilton, Job &amp Co., a particular specification of which is unnecessary. From this decree the defendants Hamilton, Job & Co. and J.E. Henkle & Co. have appealed to this court, but they have not served any notice of such appeal upon the defendant the Salem Capital Flour Mills Company. Upon this state of the case the contention of respondents is that the Salem Capital Flour Mills Company is a necessary and indispensable party to the suit in this court, for the reason that its presence is necessary, from the nature of the controversy, to a full and complete adjudication thereof, and hence that the failure of the appellants to make it a party is fatal to their appeal. The trial court, in disposing of the case, proceeded upon the principle, as held by this court in Brown v Northcutt, 14 Or. 532, 13 P. 485, that where several depositors have wheat stored in a warehouse in a common mass, and a deficiency occurs, not occasioned by the default of the depositors, the loss must be borne by each of them in the proportion...