South Portland Land Co. v. Munger

• Decision Date: 24 October 1898
• Parties: SOUTH PORTLAND LAND CO. v. MUNGER et al.
• Court: Oregon Supreme Court

54 P. 815

36 Or. 457

SOUTH PORTLAND LAND CO. v. MUNGER et al.

Supreme Court of Oregon

October 24, 1898

Appeal from circuit court, Multnomah county; Albert F. Sears, Jr. Judge.

Action by Abbie K. Munger and others against the Portland Land Company. Defendant filed a cross complaint, making plaintiff and others defendants therein. From a decree on the cross complaint for plaintiff therein, part of defendants appeal. Motion to dismiss the appeal. Denied.

W.D. Fenton, for the motion.

W.W Thayer and Alex. Bernstein, opposed.

WOLVERTON C.J.

This cause comes here on appeal from a decree on the cross complaint of the South Portland Land Company, filed to enjoin the further prosecution of an action for the possession of real property, instituted by Abbie K. Munger against said land company, to correct an alleged mistake in a certain deed which plaintiff claims constitutes a link in its chain of title, and to quiet its title to the premises in dispute. Abbie K. Munger, in the complaint in said action, alleges that she is the owner in fee of an undivided one-half of such premises, and prays judgment accordingly. The cross complaint against her joins with her, as defendants, her husband and the heirs at law of Mary Austin, deceased, and their respective spouses. All the defendants so joined with her were directed to be brought in by order of the court. Unless plaintiff is entitled to the relief demanded, the pleadings show that Abbie K. Munger is the owner in fee of an undivided one-half, and the heirs of Mary Austin, eight in number, are each the owner of an undivided one-sixteenth, of said premises. William Austin, Arthur Austin, Garfield Austin, and Olive Black (née Austin), four of such defendants, made no appearance in the court below; whereupon a guardian ad litem was appointed for Garfield Austin, he being a minor, and default entered against the other three. Mary Jackson (née Austin), the owner of a one-sixteenth interest, filed a disclaimer. The other Austin heirs, three in number, to wit Frank Austin, George Austin, and Harvey H Austin, appeared, and with the defendant Abbie K. Munger contested the suit. The four defendants last named attempted to appeal to this court by serving a notice thereof upon the plaintiff only, which filed a motion to dismiss because the defendants William, Arthur, and Garfield Austin, Mary Jackson, and Olive Black were not served with notice, nor made parties to the appeal. This presents the sole question for our disposal.

It is contended--First, that all the co-tenants are necessary parties to the proceeding put in motion by the cross complaint to reform the deed and quiet title, and that the suit could not proceed without them; hence that this court could not acquire jurisdiction to hear and determine the controversy upon the appeal without the presence of all such parties; and, second, that the decree entered below is joint and hence that all parties to it must be joined in the appeal or served with notice before appellate jurisdiction could attach. Mr. Justice Thayer, in Minter v. Durham, 13 Or. 470, 481, 11 P. 231, was very much in doubt whether two or more tenants in common had the right to join as complainants in an action of ejectment, and said, in speaking for the court, that "tenants in common hold by unity of possession, but they...