State ex rel. Hill v. Olcott

• Decision Date: 30 September 1913
• Citation: 135 P. 95,67 Or. 214
• Parties: STATE ex rel. HILL, Dist. Atty., v. OLCOTT, Secretary of State, et al.
• Court: Oregon Supreme Court

135 P. 95

67 Or. 214

STATE ex rel. HILL, Dist. Atty., v. OLCOTT, Secretary of State, et al.

Supreme Court of Oregon

September 30, 1913

In Banc.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by the State of Oregon, on relation of Gale S. Hill, District Attorney, against Ben W. Olcott, Secretary of State, and another. Decree for defendants, and plaintiff appeals as to the defendant Olcott. On motion of respondent to dismiss the appeal. Denied.

Defendant Ben W. Olcott, by his attorney, moves to dismiss this appeal on the ground that this court has no jurisdiction herein, for the reason that the notice of appeal was not served upon defendant Wilfred E. Farrell, an adverse party.

Gale S Hill, Dist. Atty., of Albany, and Ernest R. Ringo, of Salem for appellant.

A.M Crawford, Atty. Gen., and James W. Crawford, Asst. Atty. Gen., for respondent.

BEAN J.

The decree appealed from, which was rendered September 4, 1913, and the notice of appeal given in open court, are as follows: "It is considered, ordered, and decreed that the suit be and the same hereby is dismissed, and that neither party recover of and from the other his costs and disbursements in this case. Whereupon the plaintiff gives notice in open court of appeal to the Supreme Court as to defendant Ben W. Olcott."

Plaintiff contends that the defendant Farrell is not a necessary party to the suit, nor an adverse party within the meaning of the law. Section 550, L. O.L., provides that a party to a judgment or decree desiring to appeal therefrom, or some specified part thereof, may by himself or attorney give notice in open court or before the judge, if the order judgment, or decree be rendered or made at chambers, at the time said judgment, decree, or order is made, that he appeals from such decision, order, judgment, or decree, or from some specified part thereof, to the court to which the appeal is sought to be taken; and such notice shall thereupon by order of the court or the judge therefor be entered in the journal of the court. When such a notice is given in open court, the adverse parties are required to take cognizance thereof. The notice of appeal, as to the portion of the decree appealed from, is couched in general terms. As we construe this notice, it was given to all the parties to the suit. As to the parties to whom notice was given, the form of the notice, so far as we are advised, is in accordance...