Hewey v. Andrews

• Decision Date: 19 September 1916
• Citation: 159 P. 1149,82 Or. 448
• Parties: HEWEY v. ANDREWS ET AL.
• Court: Oregon Supreme Court

159 P. 1149

82 Or. 448

HEWEY v. ANDREWS ET AL.

Supreme Court of Oregon

September 19, 1916

In Banc.

Appeal from Circuit Court, Wasco County; W. L. Bradshaw, Judge.

Action by Sam Hewey against C. S. Andrews, Lillie M. Andrews, and others. Judgment for plaintiff against C. S. and L. M Andrews was modified to run against C. S. Andrews only, and he appealed. On motion to dismiss the appeal. Motion denied.

W. H Wilson, of The Dalles, for the motion. Ralph R Duniway, of Portland, opposed.

MOORE C.J.

This was an action by S. Hewey against C. S. Andrews, Lillie M Andrews, Clarence L. Look, and Ethelda M. Look, to recover the balance of an alleged commission for services rendered by the plaintiff in effectuating the sale of land. The cause was tried and a verdict of $1,727.50 returned February 16, 1916, against C. S. Andrews and Lillie M. Andrews, whose counsel, invoking the rule established in Fisk v. Henarie, 14 Or. 29, 13 P. 193, Wilson v. Blakeslee, 16 Or. 43, 16 P. 872, Thomas v. Barnes, 34 Or. 416, 56 P. 73, and North Pacific Lumber Co. v. Spore, 44 Or. 462, 75 P. 890, moved for a judgment dismissing the action notwithstanding the verdict, on the ground that the obligation sued on was joint, and that as the trial was had and the verdict returned as to only two of the defendants, no valid judgment could be predicated thereon. This motion was denied March 1, 1916, by a judgment, a part of which reads:

"Thereupon it is hereby ordered that the judgment heretofore given and made in this court and cause on the 16th day of February, 1916, be and the same is hereby set aside, vacated, and held for naught as to the defendant Lillie M. Andrews, but the same is continued in full force and effect as to the defendant C. S. Andrews, and that this cause be, and the same is hereby, dismissed as to the defendants Lillie M. Andrews, Clarence L. Look, and Ethelda M. Look, and that the defendant Lillie M. Andrews have and recover of and from the plaintiff her costs and disbursements in this action to be taxed."

In order to review the latter determination C. S. Andrews, on April 29, 1916, served a notice of appeal, and filed it May 1st following. The plaintiff's counsel move to dismiss the appeal on the ground that it was not taken within the 60 days limited therefor. The statute regulating the recording of final determinations by a circuit court reads:

"If the trial be by jury, judgment shall be given by the court in conformity with the verdict and so entered by the clerk within the day on which the verdict is returned." L. O. L. § 201.

Under the provisions of this enactment a motion to set aside a verdict and for a new trial will not ordinarily suspend the running of the statute of limitations as to the time limited for taking an appeal. Barde v. Wilson, 54 Or. 68 102 P. 301; Oldland v. Oregon Coal & Nav. Co., 55 Or. 340, 99 P. 423, 102 P. 596; Colgan v. Farmers' & Mechanics' Bank, 59 Or. 469, 106 P. 1134, 114 P. 460, 117 P. 807; Macartney v. Shipherd, 60 Or. 133, 117 P. 814, Ann. Cas. 1913D, 1257; Gearin v. Portland Ry., L. & P. Co., 62 Or. 162, 124 P. 256; Hahn v. Astoria National Bank, 63 Or. 1, 114 P. 1134, 125 P. 284; De Lore v. Smith, 67 Or. 304, 132 P. 521, 136 P. 13, 49 L. R. A. (N. S.) 555; Skelton...