Jackson County v. Bloomer

• Decision Date: 07 October 1895
• Citation: 28 Or. 110,41 P. 930
• Parties: JACKSON COUNTY v. BLOOMER et al.
• Court: Oregon Supreme Court

41 P. 930

28 Or. 110

JACKSON COUNTY v. BLOOMER et al.

Supreme Court of Oregon

October 7, 1895

Appeal from circuit court, Jackson county; H.K. Hanna, Judge.

Action by Jackson county against George E. Bloomer and others on a bond. Defendants had judgment, and plaintiff appeals. Dismissed.

H.L. Benson, Dist. Atty., and L.R. Webster, for appellant.

E.B. Watson, for respondents.

BEAN, C.J.

This is an action brought by the county of Jackson against George E. Bloomer and the sureties on his bond as treasurer of such county to recover for his alleged defalcation as such official. The complaint, inter alia alleges the qualification of Bloomer by giving the bond in suit, and that, between the dates mentioned in the complaint he, as such treasurer, collected and received $7,852.75 belonging to the county, which, in breach of his trust, and in violation of the conditions of his undertaking, he failed and neglected to account for or pay over. Bloomer, although served with summons, made default, and the sureties answered jointly, denying the defalcation alleged in the complaint and upon the issues thus made the cause was tried, and a judgment rendered in their favor on the merits. From this judgment the plaintiff appealed, without serving a notice upon Bloomer. For this reason the respondents move to dismiss the appeal, claiming that Bloomer is an adverse party to the appellant, and should have been served with notice. The rule is well settled in this state that every party to a litigation whose interests in relation to the judgment or decree appealed from are in conflict with the modification or reversal sought by the appeal is an adverse party, within the meaning of section 537 of Hill's Annotated Laws of Oregon, and must be served with the notice of appeal, and if not served the appeal must be dismissed. And the fact that a party whose interests are adverse to the appellant has made default does not preclude the necessity of serving such notice of appeal upon him. The Victorian, 24 Or. 121, 32 P 1040; Moody v. Miller, 24 Or. 179, 33 P. 402; Hamilton v. Blair, 23 Or. 64, 31 P. 197. If, then Bloomer has an interest in sustaining the judgment from which this appeal is taken, he is an adverse party to the appellant, and the failure to serve him with notice of the appeal is fatal, and the appeal should be dismissed. Now, the undertaking on which this action was brought is a joint obligation of Bloomer and the sureties, in so far, at least that all are liable or none, and therefore, although he made default, the defense successfully made by the other defendants, going as it did to the merits, and showing that the plaintiff had no right of action against any of the defendants, inures to his benefit, and prevents the entry of judgment against him on his default. The rule on this question is thus clearly stated by Mr. Black in his work on Judgments: "In an action of contract against several defendants, if one of them suffers default, and another, under the general issue, sets up and maintains a defense which negatives the...