Mendenhall v. Elwert

• Decision Date: 07 February 1898
• Citation: 36 Or. 375,52 P. 22
• Parties: MENDENHALL v. ELWERT et al.
• Court: Oregon Supreme Court

52 P. 22

36 Or. 375

MENDENHALL v. ELWERT et al.

Supreme Court of Oregon

February 7, 1898

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Action by E. Mendenhall against J.B. Elwert and others. From a decree for plaintiff, defendants appealed. Plaintiff moves to dismiss the appeal. Motion allowed, unless defendants file new undertaking.

M.L. Pipes, for the motion.

Dell Stuart, opposed.

PER CURIAM.

This is a motion to dismiss an appeal. The facts pertinent to the inquiry are that on June 19, 1897, the trial court decreed that plaintiff recover from the defendants J.B and Carrie M. Elwert the sum of $485.50, with interest from September, 1896, and $15.50, as costs and disbursements being the amount of a judgment obtained by him against them in the circuit court of Multnomah county; that he recover from Carrie M. Elwert the sum of $242.10, with interest from April 19, 1896, and $17.10 as costs and disbursements, being the amount due on a judgment obtained by him against her in a justice's court of said county, a transcript of which had been duly filed in the proper office within the time prescribed by law, so as to make it a judgment of said circuit court; that he recover from the defendants J.B Carrie M., and C.P. Elwert his costs and disbursements in this suit, taxed at $147.80; that a deed executed by J.B. to C.P. Elwert, March 12, 1894, conveying lot 4 and the south five feet of lot 3 in block 218 in the city of Portland, and a deed executed by Carrie M. to C.P. Elwert, conveying lot 5 in block 2 in the city of East Portland, and lots 2 and 3 in block 72 in Caruthers' addition to the city of Portland, be canceled and that an assignment of certain notes and mortgages severally made by J.B. and Carrie M. to C.P. Elwert, and a chattel mortgage executed by Carrie M. to the same person, be set aside. The notice of appeal, omitting the title, address and signatures, is as follows: "You will please take notice that the defendants, and each of them, in the above-entitled suit, hereby appeal to the supreme court of this state from the judgment, order, and decree against J.B. Elwert and Carrie M. Elwert for $470 and $15.50, and against Carrie M. Elwert for the further sum of $242.10, the first with interest from September 8, 1896, and the second with interest from April 9, 1896, and for costs taxed at $170.20 in this suit; said decree also setting aside a deed made by J.B. Elwert to C.P. Elwert, dated March 12, 1894, conveying lot 4 and south 5 feet of lot 3 in block 218, city of Portland; also setting aside deed from Carrie M. Elwert to C.P. Elwert, dated March 7, 1896, conveying lots 2 and 3 in block 72 in Caruthers' addition to Portland; and also setting aside the transfers and assignments of notes and mortgages to said C.P. Elwert, mentioned in said decree and the complaint of plaintiff, and decreeing some and all of said conveyances and transfers in fraud of creditors of J.B. Elwert and Carrie M. Elwert,--said decree therein made and entered, in the said circuit court, on the 19th day of June, 1897, in favor of the plaintiff in said suit, and against said defendants and each of them, and from the whole thereof." It is contended by plaintiff's counsel that this notice does not describe the decree of which the defendants complain with the degree of certainty necessary for identification, and hence does not confer upon this court jurisdiction of the cause. It will be observed that, in referring to the amount recovered by plaintiff from J.B. and Carrie M. Elwert, it is stated therein to be $470 and $15.50, the sum of which is $485.50, the amount so awarded; but there is an error in the date from which the interest is to be computed, and a...