Moody v. Miller

• Decision Date: 27 June 1893
• Citation: 24 Or. 179,33 P. 402
• Parties: MOODY v. MILLER et al.
• Court: Oregon Supreme Court

33 P. 402

24 Or. 179

MOODY v. MILLER et al.

Supreme Court of Oregon

June 27, 1893

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Suit by Z.F. Moody against Mary E. Miller, Charles S. Miller, and others. From a judgment for plaintiff a part of defendants appeal. Appeal dismissed.

A.S Bennett, for appellants.

W. Lair Hill, for respondent.

BEAN J.

This is a motion to dismiss an appeal from a decree in favor of the plaintiff, on the ground that the notice of appeal has not been served upon all the adverse parties. The plaintiff brought a suit to foreclose a mortgage in his favor, executed by the defendant Mary E. Miller upon two certain tracts of land in Wasco county, one of which turned out, in the course of subsequent litigation, to be the property of her husband the defendant Charles S. Miller, but from whom she had subsequently been divorced. The complaint avers that the mortgage was given to secure the payment of a debt contracted for the expenses of the family, and for money used in keeping in repair the property which was adjudged to the husband, and was therefore a debt of both Mary E. Miller and Charles S. Miller, and a joint lien upon their property; that both of the parties are insolvent, and neither has any property except that covered by the mortgage; that the defendants Atwater and Bennett and Smith are each subsequent incumbrancers of the property belonging to C.S. Miller, and their interests, if any, are subsequent to and subject to the lien of plaintiff's mortgage, and that the defendant Grant has a judgment lien on the property of Mrs. Miller which is also subsequent to and subject to the lien of the plaintiff's mortgage. All of the defendants were duly served with summons, and the defendants Mrs. Miller and Grant made default. The defendant C.S. Miller answered, tendering the issue mainly as to the debt for which the mortgage was given being one for family supplies or repairs made upon his property, and claimed that neither he nor his property are liable therefor. The defendants Atwater and Bennett and Smith, who are subsequent mortgagees of Miller, by their answer present substantially the same issue. The case was tried upon the evidence, and the court below found that the debt was contracted for family supplies, and decreed the foreclosure of the mortgage against the property of both Mr and Mrs. Miller, and a personal judgment against both jointly for any amount that might remain unpaid after the sale of the mortgaged property, and that the interests of the other defendants be barred. From this decree the defendants C.S. Miller, Atwater, and Bennett and Smith join in an appeal to this court, serving the notice of appeal upon the plaintiff, but not upon the defendants Mary E. Miller or Grant.

The motion to dismiss is based upon the proposition that the defendants Mrs. Miller and Grant are both adverse ...