Hand Mfg. Co. v. Marks

• Decision Date: 14 March 1898
• Citation: 52 P. 512,36 Or. 523
• Parties: HAND MFG. CO. v. MARKS et al.
• Court: Oregon Supreme Court

52 P. 512

36 Or. 523

HAND MFG. CO. v. MARKS et al.

Supreme Court of Oregon

March 14, 1898

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

Suit by the Hand Manufacturing Company against J.S. Marks and others to foreclose a mechanic's lien. From a decree for plaintiff, part of the defendants appeal. Motion to dismiss the appeal denied.

A.C. Emmons, for the motion.

T.N Strong, opposed.

PER CURIAM.

This is a motion to dismiss an appeal. The transcript shows that plaintiff, a private corporation, commenced this suit to foreclose a lien upon lots 5 and 6 in block 92 in the city of East Portland, for material furnished to the defendant J.S. Marks, who, by virtue of a contract with one L.D. Brown, now deceased, had charge of the construction of a brick building for the latter on said premises then owned by him. The defendants Theodore Jensen James Lyons, and the East Portland Mill & Fixture Company filed separate answers, in the nature of cross bills, seeking to foreclose their respective liens upon said premises for material furnished to be used in the construction of said building; and the defendant E.R. Brown, executrix of the last will and testament of L.D. Brown, deceased, and the present owner of said premises, filed an answer to the complaint and to the cross bills of her co-defendants. Marks was made a party, and demurred to the complaint; but, his demurrer being overruled, he failed to plead further, and the cause, being tried, resulted in a decree foreclosing the liens of plaintiff and the East Portland Mill & Fixture Company, for the amount demanded by each respectively; but the court having found that Jensen and Lyons were sureties on Marks' undertaking for the faithful performance of his contract, a breach of which necessitated an outlay of money by the owner in completing the building, after Marks had abandoned his agreement, in excess of the amounts demanded by said sureties as lien claimants, their cross bills were dismissed, and they jointly, and E.R. Brown separately appeal, but did not serve the notices thereof upon Marks.

It is contended that Marks is an adverse party, and, not having been served with a notice of the appeal, this court is without jurisdiction, and therefore the appeal should be dismissed. In Manufacturing Co. v. Delahunt, 51 P 649, we had occasion to examine this question, and reached the conclusion that while the contractor having charge of...