In re Banfield's Estate

• Decision Date: 19 May 1931
• Citation: 299 P. 323,137 Or. 256
• Parties: IN RE BANFIELD'S ESTATE. v. SCHULDERMAN ET AL. BANFIELD
• Court: Oregon Supreme Court

299 P. 323

137 Or. 256

IN RE BANFIELD'S ESTATE.

BANFIELD v. SCHULDERMAN ET AL.

Supreme Court of Oregon

May 19, 1931

On the Merits.

Department 1.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Petition by Charles C. Banfield, executor of the estate of Marie Banfield, deceased, for an order to sell real property of the estate, to which Henry J. Schulderman and another, two of the heirs and devisees, filed answer. From an order denying the petition and requiring the petitioner, individually, to account for certain moneys to the estate, the petitioner individually appeals. Motion to dismiss the appeal.

Motion denied, and order qualified and affirmed.

See also, 296 P. 1066; 298 P. 905.

Albert L. Gordon, of Portland, for appellant.

A. C Shaw and J. O. Bailey, both of Portland, for respondents.

KELLY J.

This is an appeal of Charles C. Banfield, individually, from an order of the department of probate of the circuit court of Multnomah county, Ore., denying an amended petition filed September 5, 1929, by Charles C. Banfield executor of the estate of Marie Banfield, deceased, for an order to sell real property belonging to the estate. The order from which this appeal is sought also requires said Charles C. Banfield, individually, to account for certain moneys to the executor of the estate; he, the said Charles C Banfield, himself being such executor.

A motion to dismiss the appeal was duly interposed by respondents. An order was heretofore made overruling said motion with the privilege of renewing it upon argument of the case upon the merits. Respondents in their brief and argument, upon the merits, renewed their motion to dismiss the appeal.

Four grounds are relied upon by the respondents in support of this motion.

First, that no notice, as provided by law, has been served upon respondents.

Second, that no notice of appeal was ever served upon the executor of the estate.

Third, that the appeal was prematurely taken in so far as the same concerns respondents.

Fourth, that the certificate of the court reporter to the transcript of testimony is insufficient, in that it fails to state that the witnesses were sworn to tell the truth, the whole truth, and nothing but the truth.

The first and third grounds urged for dismissal of the appeal must be considered together for the reason that the first ground, namely, that no notice of appeal, as required by law, was served upon respondents, is tenable or untenable, dependent upon whether the service of the notice of appeal which actually was served, was premature or not.

As to the second ground, that no notice was served upon the executor, we hold that where, as in this case, the appellant is the executor and throughout the litigation in the circuit court and this court the same attorney represents the appellant as an individual and as the executor, and the order from which this appeal is prosecuted, among other things, requires appellant as executor to account for assets becoming such because of a claim due the estate from him as an individual, the service of the notice of appeal by the individual upon himself as executor would be a vain and idle gesture; hence, the failure in this case to make such service constitutes no ground for dismissal of the appeal.

As to the fourth ground for dismissal, namely, insufficiency of the certificate of the reporter, the respondents fail to distinguish between this case, wherein the certificate was made by a duly appointed official court reporter, and the case of Johnson v. Johnson, 131 Or. 235, 240, 274 P. 918, 282 P. 1082, wherein a private stenographer, who had not taken the oath prescribed by statute, reported the testimony. In the case at bar the certificate of the official reporter is substantially the same as that which was approved in Sanborn v. Fitzpatrick, 51 Or. 457, 460, 91 P. 540. The certificate of the clerk of the court also accompanies the transcript. This furnished sufficient authentication of the record under rule 2 of this court.

Subdivision 1 of section 7-503, Oregon Code, provides: "(1) A party to a judgment, decree or final order or any order from which an appeal may be taken in any action, suit or proceeding, desiring to appeal therefrom, or some specified part thereof, may by himself or attorney give notice in open court, or before the judge if the order, judgment or decree be rendered or made at chambers, at the time said judgment, decree or order is made, that he appeals from such decision, order, judgment or decree, or from some specified part thereof, to the court to which the appeal is sought to be taken; and such notice shall thereupon, by order of the court or judge thereof, be entered in the journal of the court. If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place where he or they may be found, and file the original with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered. Such notice shall be sufficient if it contains the title of the cause, the names of the parties and notifies the adverse party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order or decree, or some specified part thereof."

Subdivision 5 thereof provides: "(5) An appeal to the supreme court, if not taken at the time of the rendition of the judgment or decree appealed from, or at the time of making the interlocutory order appealed from, shall be taken by serving and filing the notice of appeal, within sixty (60) days from the entry of the judgment, order or decree appealed from, or to the circuit court within thirty (30) days after such entry, and not otherwise; provided, that in all cases where the right to an appeal to the Supreme Court shall exist at the time this act shall come into force, the time for taking such appeal is hereby extended for the period of sixty (60) days thereafter."

In our examination of the cases tending to support respondents' position, we find none based upon such statutory provisions. In 1893, the Legislature of the State of Washington enacted a statute with similar provisions. Chapter 61, Session Laws 1893 of Washington, pp. 119, 120, 121, §§ 3 and 4.

In 1895, the Supreme Court of the State of Washington passed upon the question we have to decide in the case at bar. The holding of the Washington court thereupon, in an opinion rendered by Mr. Chief Justice Hoyt, is as follows: "Respondents move to dismiss this appeal, for the reason that it was taken before the judgment had been made, signed, and entered. That it was taken after the announcement by the court of the terms of the judgment is conceded, and, such being the fact, we think the motion must be denied. The statutes governing appeals should be liberally construed, to the end that parties may have a review by this court of the rulings of the superior courts when they so desire. The appeal statute thus construed will require us to give force to a notice of appeal given after the court had announced its decision, although it was before the signing and entering of the formal judgment. For some purposes the judgment may not be complete until thus signed and entered, but, after such announcement, it was so far complete as to sustain a notice of appeal." Hays v. Dennis, 11 Wash. 360, 39 P. 658, 659.

The statute of Oregon which was enacted in 1899, unquestionably was taken from the Washington statute of 1893. 1899 Session Laws, p. 227. The language of the Oregon statute is not exactly the same as that of the Washington statute and in the Washington case the statute is not quoted, and hence we would not be justified in holding that the enactment of the Oregon statute carried with it the adoption of the construction thereof theretofore given by the Supreme Court of the State of Washington, but the pronouncement of the Washington court, being based upon a statute so similar to ours, is strongly persuasive.

Many courts have held that service of notice of appeal before entry of judgment is premature. McLaughlin v. Doherty, 54 Cal. 519; In re More's Estate, 143 Cal. 493, 77 P. 407; In re Dunphy, 158 Cal. 1, 109 P. 627; In re Sheid, 122 Cal. 528, 55 P. 328; In re Estate of Pearsons, 119 Cal. 27, 50 P. 929; Home for Care of Inebriates v. Kaplan, 84 Cal. 486, 24 P. 119; Coon v. United Order of Honor, 76 Cal. 354, 18 P. 384; Matter of Fifteenth Ave. Extension, 54 Cal. 179; Onderdonk v. San Francisco, 75 Cal. 534, 17 P. 678; In re Rose, 72 Cal. 577, 14 P. 369; Schroder v. Schmidt, 71 Cal. 399, 12 P. 302, 304; Kimple v. Conway, 69 Cal. 71, 10 P. 189; Los Angeles County Bank v. Raynor, 61 Cal. 145; Thomas v. Anderson, 55 Cal. 43; Stebbins v. Larson, 4 Cal. App. 482, 88 P. 505; Robinson v. Salt Lake City, 37 Utah, 520, 109 P. 817; Watson v. Odell, 53 Utah, 96, 176 P. 619; Martin v. Smith, 11 S.D. 437, 78 N.W. 1001; Greenly v. Hopkins, 7 S. D. 561, 64 N.W. 1128; Nepper v. Wordehoff, 42 S.D. 170, 173 N.W. 644; Hahn v. Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705; Culbertson v. Ainsworth, 26 Wyo. 314, 181 P. 418; Thompson v. Great Western Accident Association, 136 Iowa, 557, 114 N.W. 31; Hodgins v. Heaney, 15 Minn. 185 (Gil. 142); McTavish v. Great Northern Railway Co., 8 N. D. 333, 79 N.W. 443; Wolff v. Wilson, 25 Pa. Super. Ct. 266.

The distinction between the statute of Oregon and the statutes of the states from which the cases last above cited are taken is that in Oregon the right to an immediate appeal is expressly given, and in the other...