Spitzer v. The Annette Rolph

• Decision Date: 02 October 1923
• Citation: 110 Or. 461,218 P. 748
• Parties: SPITZER v. THE ANNETTE ROLPH ET AL.
• Court: Oregon Supreme Court

218 P. 748

110 Or. 461

SPITZER v. THE ANNETTE ROLPH ET AL.

Supreme Court of Oregon, En Banc.

October 2, 1923

Appeal from Circuit Court, Multnomah County; George W. Stapleton Judge.

Action by W. L. Spitzer against the Annette Rolph, a vessel, and the Rolph Navigation & Coal Company, a corporation. From a decree for plaintiff, defendants appeal. Motion to dismiss appeal denied.

Platt & Platt, Montgomery & Fales, of Portland, for appellants.

John W Kaste, of Portland, for respondent.

BURNETT J.

The plaintiff, claiming to have been injured by the negligent management of the tackle of the defendant ship Annette Rolph while he was on a dock in the city of Portland loading lumber upon the vessel, brought suit under section 10281, Or. L., directly against the vessel, to enforce his lien, created by that section, "for damages or injuries done to" his person by the vessel.

Subsequent to the commencement of the suit, the Rolph Navigation & Coal Company, owner, and the McCormick Steamship Line, a corporation, agent and charterer, of the vessel, together with American Surety Company entered into an undertaking conditioned to satisfy the amount which should be adjudged to be due and owing to the plaintiff on the determination of the action, together with all costs accruing, all as provided in section 10289, Or. L. The vessel was thereupon released from the detention of the sheriff, who had seized it by virtue of a warrant issued at the beginning of the suit. The owner appeared on behalf of the ship and answered the complaint as permitted in section 10287, Or. L. After reply and a hearing on issues joined, the court rendered a decree in favor of the plaintiff in the sum of $3,500, and ordered that the vessel with its tackle, apparel, and furniture, be sold, and the proceeds thereof applied to the satisfaction of the decree, together with costs and disbursements. At the same time the circuit court rendered a judgment upon the undertaking in the same amount.

The vessel by name, and the owner thereof, the Rolph Navigation & Coal Company, served a notice of appeal on the plaintiff alone, and did not serve the same on the McCormick Steamship Line or the American Surety Company. The plaintiff now moves to dismiss the appeal on the ground that the other parties who signed the undertaking and were not served with notice of appeal are parties adverse to those appealing and should have had notice.

It is said in section 550, Or. L., relating to taking an appeal:

"If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then 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 or suit, or upon his or their attorney, at any place in the state, and file the original with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered."

Not only the vessel, but also all the signers of the undertaking, are alike interested in the defeat of the decree of the circuit court. Their hostility to that determination is identical. The plaintiff has not appealed, and there can be no modification in his favor in this court. Caro v. Wollenberg, 83 Or. 311, 316, 163 P. 94; Crumbley v. Crumbley, 94 Or. 617, 186 P. 423; Johnson v. Prineville, 100 Or. 105, 196 P. 817. This being a suit in equity, as held in Cordrey v. The Bee, 102 Or. 636, 201 P. 202, 20 A. L. R. 1079, the issue on the appeal will be tried de novo in this court. Affected as it is by the principle that the plaintiff, not having appealed, cannot have a better decree here than the one rendered in the court below, the position of the defendants cannot be made worse than it already is. Any modification of the decree therefore, would affect them favorably.

It is argued that the defendants in the judgment, who have not been served with notice of appeal, have a right to pay the judgment and so stop the litigation. This right, however, is identical in all the parties to the judgment on the undertaking. Something is said in the argument about the right of contribution affecting the question. That right however, is not determined by the judgment itself. For aught that appears, the agreement may have been that the owner of the vessel would pay the entire judgment based upon the undertaking. It is possible that it was stipulated that one of the other parties should pay it. As between the individuals concerned at present, and under the relations now involved, the question of contribution does not enter into the calculation. Where the matter of contribution and its...