Jerstad v. Warren

• Court: Court of Appeals of Oregon
• Citation: 698 P.2d 1033,73 Or.App. 387
• Parties: , 41 UCC Rep.Serv. 149 Luther G. JERSTAD, and LJA, Inc., an Oregon corporation, Respondents, v. Kenneth Edgar WARREN and Maxine Marie Warren, husband and wife, Appellants. 79-7-124; CA A31867.
• Decision Date: 01 May 1985

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698 P.2d 1033 73 Or.App. 387, 41 UCC Rep.Serv. 149 Luther G. JERSTAD, and LJA, Inc., an Oregon corporation, Respondents,
v.
Kenneth Edgar WARREN and Maxine Marie Warren, husband and
wife, Appellants. 79-7-124; CA A31867. Court of Appeals of Oregon. Argued and Submitted Jan. 7, 1985.
Decided May 1, 1985.

[73 Or.App. 388] Dennis H. Elliott, Portland, argued the cause for appellants. With him on the briefs was Elliott & Freedman, Portland.

Frank Porcelli, Jr., Beaverton, argued the cause for respondents. On the brief

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were Bradley C. Blyth and Blyth, Solomon & Porcelli, Beaverton.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

[73 Or.App. 389] BUTTLER, Presiding Judge.

This is an action to recover payment made by plaintiff LJA, Inc., on a promissory note which defendants signed as makers, payable to the Oregon Bank. Plaintiff Jerstad, who is president of LJA, Inc., ¹ signed the note as an accommodation party. ORS 73.4150. When defendants defaulted on the note, the bank demanded payment from Jerstad. The bank's demand was satisfied by payment from LJA.

Jerstad then filed this action to recover the payment from defendants, who counterclaimed for an accounting of wages and for stock options in LJA, allegedly due under an employment contract with Jerstad. Jerstad's demurrer to the counterclaim on the ground that LJA was a necessary party to the litigation was overruled. In his answer to the counterclaims, Jerstad again asserted that LJA was a necessary party under ORCP 29 for the adjudication of those claims. Defendants moved for summary judgment on Jerstad's claim on the ground that LJA, not Jerstad, paid the note; therefore, any right to recover belonged to LJA, rather than to Jerstad. That motion was denied; however, during the trial, a motion was allowed substituting LJA for Jerstad as plaintiff on the claim and adding LJA as a defendant on the counterclaim along with Jerstad. When we refer to plaintiff, we refer to LJA.

Trial was to the court, which found in favor of LJA on the claim and for defendants on their counterclaims against Jerstad personally. Separate judgments were entered July 29, 1982, disposing of the claim and the counterclaims. We dismissed the appeal and cross-appeal from those judgments, because there was no final disposition of the counterclaim against LJA and because neither of the judgments complied with ORCP 67 B. Jerstad v. Warren, 66 Or.App. 299, 673 P.2d 565 (1983). On remand, the trial court entered another separate judgment in favor of LJA on the counterclaim on May 2, 1984. This appeal by defendants is taken from the May 2 judgment, and there is no cross-appeal.

LJA contends that this appeal must also be dismissed, because the errors assigned are not related to the May [73 Or.App. 390] 2, 1984, judgment, but only to the July 29, 1982, judgments, and because the notice of appeal fails to designate accurately what action of the trial court is being appealed. The notice of appeal reads, in part, as follows:

"Defendants hereby give notice of appeal from the judgment entered in this case on May 2, 1984 by Judge Howard Blanding in the Circuit Court for Clackamas County."

Attached to the notice of appeal are copies of the July 29, 1982, judgments ² and the May 2, 1984, judgment.

In Jones v. Tri-State Realty, 46 Or.App. 159, 611 P.2d 312 (1980), we held that the predecessor to ORCP 67, ORS 18.125, did not require

" * * * that the several judgments respecting the various parties be summarized in a single judgment order. What is required is that the cause be determined as to all parties or that the requirements of ORS 18.125 be met as to a judgment for fewer than all parties. * * * " 46 Or.App. at 161, 611 P.2d 312.

Defendants have appealed from the judgment that, considered with the two earlier judgments, finally disposed of all claims against all of the parties. It is an appealable judgment. The notice correctly advises the adverse parties that the appeal is taken

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from that judgment, gives the correct date of the judgment and has a copy of the judgment attached. Defendants met the requirements of ORS 19.029. See generally Werline v. Webber, 54 Or.App. 415, 419, 635 P.2d 15 (1981), rev. den. 292 Or. 450, 644 P.2d 1128 (1982).

The fact that defendants failed to designate in the notice of appeal the nonappealable judgments entered in 1982 was not a failure to provide notice that "an appeal is taken from the judgment or some specified part thereof * * *." ORS 19.029(1)(c). Stahl v. Krasowski, 281 Or. 33, 573 P.2d 309 (1978), relied on by plaintiff, is not in point. In that case the notice of appeal designated a nonappealable order rather than a judgment as the basis for appeal, and the court held that a designation of the judgment appealed from was a jurisdictional requirement. 281 Or. at 39, 573 P.2d 309; see also Ensley v. Fitzwater, [73 Or.App. 391] 293 Or. 158, 695 P.2d 1062 (1982). The notice of appeal in this case does not suffer from that defect, and there is no requirement that an appellant specify in the notice of appeal those parts of a judgment on which assignments of error will be based. Errors may be assigned to "any intermediate order involving the merits or necessarily affecting the judgment * * * appealed from * * *." ORS 19.140. Accordingly, plaintiff's motion to dismiss the appeal is denied.

The trial court's findings supporting judgment for LJA on the note are brief:

"I. Defendants, for value, executed a note, a copy of which is evidenced by Exhibit No. 2, payable to Oregon Bank. Plaintiff Luther G. Jerstad signed the note as accommodation at the bank's request.

"II. The bank made demand upon Jerstad for payment of the note. LJA, Inc., of which Jerstad was principal owner, paid to the bank the balance due on the note of principal and interest in the amount of $3,256.11 on June 26, 1979. LJA, Inc. has carried this amount as due and owing on its books and has classified the amount as a bad debt.

"III. The note has been lost. It was not delivered or formally assigned to LJA, Inc. The bank has no record of delivery of the...