State ex rel. Shepherd v. Simpson
| Decision Date | 06 January 1914 |
| Citation | 69 Or. 93,137 P. 750 |
| Parties | STATE EX REL. SHEPHERD v. SIMPSON. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; W. L. Bradshaw, Judge.
Action by the State, on the relation of George S. Shepherd, against E. M. Simpson. From a judgment for relator, he appeals. Motion to dismiss appeal denied, but appeal dismissed on court's own motion.
Walter H. Evans, Dist. Atty., and Geo. S. Shepherd, both of Portland, for appellant. Claude McColloch, of Baker, for respondent.
This is a motion to dismiss an appeal; the movent assigning two reasons therefor: (1) That appellant is in no sense aggrieved by the judgment, inasmuch as the court gave him "everything prayed for"; (2) that "there has ceased to be, if there ever was, any controversy between the parties."
Historically the case presents this situation: The relator, Geo. S Shepherd, for a period of time prior to December 9, 1911, the date of the contest in question, was captain of the Oregon Naval Militia. The time of the annual election arriving defendant E. M. Simpson contested with relator his right to a re-election. The canvassing board declared defendant elected to the office of captain of the Oregon Naval Militia whereupon relator, conformable to the provisions of section 368 et seq., L. O. L., brought this action in the name of the state against defendant for usurpation of the office. Service of process was made upon defendant, but, no appearance being made, defendant's default was noted and a judgment for want of an answer entered. After trial the lower court adjudged that defendant never qualified for the office to which he had been elected, and, in the absence of any lawfully chosen successor, appellant was the lawful incumbent of the office of captain of the Oregon Naval Militia. Relator, feeling displeased with the judgment of the lower court, brings this appeal and, when perfecting the same served a notice thereof on defendant, who now appears and urges his motion to dismiss the appeal.
Section 550, L. O. L., indicating the manner in which an appeal shall be taken and perfected, states in substance that, if an appeal is not taken in open court, the party desiring to appeal may cause a notice thereof to be served on "such adverse party or parties as have appeared in the action or suit." Defendant not having appeared in the lower court it became unnecessary, in view of the statute to have served him with notice of appeal, as the section limits those to be served with notice to such only as have "appeared" in the suit or action. Appellant, in notifying defendant of the appeal, performed an act of supererogation which created no additional rights in defendant. U.S. Investment Corporation v. Portland Hospital, 40...
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Marriage of Gibbons, Matter of, DR-0852
...thus, was entered for want of an answer. See Rajneesh Foundation, 303 Or. at 141-42 n. 2, 734 P.2d 871. See also State ex rel. Shepherd v. Simpson, 69 Or. 93, 137 P. 750, on rehearing 69 Or. 93, 98, 138 P. 467 (1914) (judgment was entered "for want of an answer" notwithstanding the fact tha......
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Cohn v. State Tax Commission
...24 S.Ct. 63, 48 L.Ed. 140. Jurisdiction is given by law. Clyde & R. Plank Road Co. v. Parker, 22 Barb. (N. Y.) 323." In State ex rel. v. Simpson, 69 Or. 93, 137 P. 750, P. 467, this court dismissed an appeal in a nonappealable case on its own motion. See, also, City of Portland v. Nottingha......
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State ex rel. Shepherd v. Simpson
...467 69 Or. 93 STATE EX REL. SHEPHERD v. SIMPSON. Supreme Court of OregonFebruary 3, 1914 On petition for rehearing. For former opinion, see 137 P. 750. Petition BURNETT, J. The defendant in the court below did not answer or otherwise appear in this action. The circuit court heard some testi......
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