Smith v. Burns

• Decision Date: 30 September 1913
• Citation: 135 P. 200,71 Or. 133
• Parties: SMITH v. BURNS.
• Court: Oregon Supreme Court

135 P. 200

71 Or. 133

SMITH v. BURNS.

Supreme Court of Oregon

September 30, 1913

In Banc.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by George Smith against D.C. Burns and another. Judgment for the plaintiff, and the defendant D.C. Burns appeals. Motion to dismiss appeal denied.

This is a motion to dismiss an appeal. The defendant Burns was sued jointly with one Gossman for personal injuries sustained by plaintiff, whose complaint alleged that Gossman, while driving Burns' automobile upon business for Burns, negligently ran over and injured plaintiff. The defendants answered separately, and upon the trial there was a verdict and judgment against both of them for $750. Burns alone appealed, but made no service of notice upon his codefendant. The motion to dismiss is made upon the theory that Gossman is an adverse party within the meaning of the statute; that, no service having been made upon him, this court is without jurisdiction.

Paul M. Long and Christopherson & Matthews, all of Portland, for appellant.

S.D. Parker and I.N. Smith, both of Portland, for respondent.

McBRIDE, C.J. (after stating the facts as above).

Section 550, L. O.L., contains the following provision: "The party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action," etc. An "adverse party" is a party whose interest in the judgment appealed from is in conflict with the modification or reversal sought by appellant. Conrad v. Pacific Packing Co., 34 Or. 341, 49 P. 659, 52 P. 1134, 57 P. 1021. Were this a case arising upon contract or matters of that character wherein one judgment debtor can call upon another for contribution in case he is compelled to pay all of the judgment, he would of necessity be injuriously affected if the appealing party should be released upon appeal; but in a tort of the character declared upon here he cannot call upon his codefendant for contribution in any event. 7 Am. & Eng.Enc.Law (2d Ed.) 364; 9 Cyc. 804. The defendant Gossman by not appealing has, in effect, said that he is satisfied with the judgment, and in any event he cannot be placed in a worse position by any change in the judgment against his codefendant upon appeal.

The motion is denied.