Lidfors v. Pflaum

• Citation: 115 Or. 142,205 P. 277
• Parties: LIDFORS v. PFLAUM ET AL.
• Decision Date: 21 March 1922
• Court: Supreme Court of Oregon

205 P. 277

115 Or. 142

LIDFORS v. PFLAUM ET AL.

Supreme Court of Oregon

March 21, 1922

In Banc.

Appeal from Circuit Court, Multnomah, County; Robert G. Morrow Judge.

Action by Fred Lidfors, by Magnus Lidfors, his guardian ad litem against H. A. Pflaum, doing business as the Fulton Wood Company, and another. Judgment for plaintiff, and the named defendant appeals. On motion to dismiss appeal. Motion overruled.

Griffith, Leiter & Allen, of Portland, for appellant.

Olson Dewart & Bain, of Portland, for respondent.

BURNETT C.J.

The plaintiff brought action against the two defendants, charging them in tort for personal injuries to himself said to have been caused by their concurrent negligence. The jury found a verdict in favor of the plaintiff and against the defendant Pflaum for $1,500, but was utterly silent as to the defendant McClain. Upon this verdict a judgment was rendered in favor of the plaintiff and against Pflaum, which in turn was also silent as to McClain. Pflaum appealed, serving his notice of appeal only upon the plaintiff, and not upon McClain. The plaintiff now moves to dismiss the appeal on the ground that the notice of appeal has not been served upon all the adverse parties.

The litigants agree to the principle that this court has no jurisdiction to revise the judgment of a circuit court unless the notice of appeal is served upon all the adverse parties. It is likewise axiomatic that the term "adverse party" is not necessarily confined to plaintiffs as against defendants, or vice versa, but that defendants may be adverse to each other and that the same may be said of plaintiffs. It has been held in many precedents that on appeal he is an adverse party whose interest would be affected unfavorably to him by a reversal of the judgment appealed from; or, stating it differently, that, as to the appellant, he is an adverse party who is interested in sustaining the judgment or decree from which the appeal has been taken. The Victorian, 24 Or. 121, 32 P. 1040, 41 Am. St Rep. 838; Moody v. Miller, 24 Or. 179, 33 P. 402; In re Waters of Chewaucan River, 89 Or. 659, 171 P. 402, 175 P. 421. The following rules have been laid down in the Code of Civil Procedure, respecting the entry of judgment:

"Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves." Section 180, Or. L. "In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the others." Section 181, Or. L.

It is well settled that a joint tort-feasor cannot complain if his codefendant escapes liability by obtaining a favorable verdict or otherwise; the reason being that no contribution towards payment of the judgment can be enforced, as a general rule, between joint tort-feasors. In other words, as between defendants sued jointly for tort, neither one is concerned about whether the other is cast in judgment or not. So here, as between the defendants, it is no concern of Pflaum that McClain escaped an adverse judgment. Neither does it affect McClain that Pflaum was defeated in the action. It may be possible that the verdict obtained was irregularly secured, owing to error in the admission of testimony or for other reasons, about which we make no intimation. But the only one who can complain of that feature as against McClain is the plaintiff, and he has not appealed.

It is said in many cases that a verdict silent as to one alleged joint tort-feasor is a finding in his favor on all the issues, and that he is entitled to judgment that the plaintiff take nothing by his action. Doremus v Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649; Jones v. Grimmet, 4 W. Va. 104; Milling Co. v. Abernathy, 8 Ind. App. 73, 35 N.E. 399. In Buckles v. Lambert, 61 Ky. 330, a verdict against several joint tort-feasors was set aside as to one, and it was held to be proper to render judgment against the others. In Birkel v. Chandler, 26 Wash. 241, 66 P. 406, there was a...