Medynski v. Theiss

• Decision Date: 05 February 1900
• Citation: 59 P. 871,36 Or. 397
• Parties: MEDYNSKI v. THEISS et al. [1]
• Court: Oregon Supreme Court

59 P. 871

36 Or. 397

MEDYNSKI v. THEISS et al. ^[1]

Supreme Court of Oregon

February 5, 1900

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

Action by F.V. Medynski against B.P. Theiss and another. From a judgment for plaintiff defendants appeal. Reversed.

This is an appeal from an order of the circuit court for Jackson county directing the receiver to distribute a fund arising from the sale of partnership property. The facts are that in the trial of a suit to dissolve a partnership between the parties hereto the referee found, in effect, that on July 18 1890, the plaintiff, F.V. Medynski, and the defendant B.P Theiss formed a co-partnership known as the Medford Distilling & Refining Company, Theiss agreeing to contribute the sum of $10,000 and Medynski his skill and experience, the result of the enterprise to be shared equally; that on March 2, 1892, the defendant G.W. Bashford contributed the sum of $5,000 to the firm's assets, securing an undivided one-sixth interest in, and becoming a member of, the partnership, it being agreed that he should not be liable for any of the prior debts of the firm, which amounted to $10,430.76; that prior to March 2, 1892, Medynski contributed to the assets of the firm the sum of $788.08 and withdrew $337, and thereafter paid in $834 and drew out $1,217.49 that prior to March 2, 1892, Theiss furnished $11,108.65 and drew out $85, and thereafter contributed $2,108.84 and withdrew $2,575.74; that Bashford supplied the sum of $5,076.98 and withdrew $174.78; and that the debts of the firm, incurred after Bashford became a member, were $2,163.72, including the sum of $560 due Medynski for labor. The court modified the report of the referee by finding that Bashford did not become a member of the firm until March 2 1893; that the sum so paid by him was to be equally credited to Medynski and Theiss as contributions made by them; that a note executed to Mrs. B.P. Theiss April 1, 1891, for $5,500, bearing 10 per cent. interest, the amount of which was included as a debt of the old firm, was chargeable to Theiss' account, which, by a subsequent agreement, was to be deducted from his original contribution; and thereupon decreed a dissolution of the partnership, ordered the receiver, theretofore appointed, to sell the property of the firm, and from the proceeds pay--First, the expenses of the sale and the costs and disbursements of the suit; second, the debts of the last partnership; third, one-sixth of the remainder to Bashford; and, fourth, the residue to Medynski and Theiss. The receiver having sold the partnership property, realizing therefrom the sum of $4,166.91, plaintiff assigned his claim of $560 to W.S. Crowell, who demanded of the receiver payment thereof, and upon the latter's refusal to pay the same made application to the court, which, after the time for taking an appeal from the decree had expired, ordered the receiver to pay the claim, and defendants appeal.

Austin S. Hammond, for appellants.

E.B. Watson, for respondent.

MOORE J. (after stating the facts).

Plaintiff's counsel move to dismiss the appeal, contending that this court is without jurisdiction in consequence of the appellants' failure to serve the notice of appeal upon Crowell and the receiver. To inaugurate an appeal, the appellant is required to cause a notice thereof to be served on the adverse party. Hill's Ann.Laws, § 537. A party to a judgment or decree, to be adverse within the meaning of the statute, must have been made a party at the commencement of the suit or action, or thereafter brought in, by order of the court, in some appropriate manner. Barger v. Taylor, 30 Or. 228, 42 P. 615, 47 P. 618. Crowell is in privity with the plaintiff by reason of the assignment, and a modification or reversal of the order complained of would be binding upon him, and adverse to his interests; but he is...