The Victorian

• Decision Date: 27 April 1893
• Citation: 32 P. 1040,24 Or. 121
• Court: Oregon Supreme Court
• Parties: THE VICTORIAN. v. OREGON SHORT LINE & U.N. RY. CO. SMITH et al.

32 P. 1040

24 Or. 121

THE VICTORIAN. SMITH et al. v. OREGON SHORT LINE & U.N. RY. CO.

Supreme Court of Oregon

April 27, 1893

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by W.K. Smith, A.T. Smith, W.V. Smith, and P.C. Smith, doing business under the firm name of Smith Bros. & Co., against the boat Victorian, the Oregon Short Line & Utah Northern Railway Company, claimant, to enforce a material man's lien. From a judgment for plaintiffs, claimant appeals. Affirmed.

W.W. Cotton and Zera Snow, for appellant.

E.C. Bronaugh and W.D. Fenton, for respondents.

LORD, C.J.

This is an action brought by the plaintiffs against the defendant boat Victorian, under the provisions of the boat lien law (section 3690 et seq.,) to enforce a lien for materials alleged to have been furnished by the plaintiffs to one J.F Steffen, and to have been used by him as a contractor in the construction of the defendant boat. The record discloses that the sheriff of Multnomah county seized the boat, whereupon the Oregon Short Line & Utah Northern Railway Company, as defendant and claimant, filed its undertaking as provided by section 3698 of Hill's Code, with D.P. Thompson and J.W Troupe as sureties, and obtained its release, and thereafter appeared in the action as such defendant and claimant. After trial the court rendered a judgment against the boat Victorian, and also, under section 3701 of Hill's Code against the defendant company and its sureties in the undertaking. From this judgment the defendant company has appealed, but neither D.P. Thompson nor J.W Troupe have joined in the appeal, nor has it served notice of such appeal upon them, or either of them. Upon this state of the case plaintiffs have moved to dismiss the appeal, upon the ground that Thompson and Troupe are so connected in the judgment, and would be so affected by its modification or reversal, that they are as to the plaintiffs or defendants an "adverse party," within the meaning of the statute in relation to appeals, and therefore necessary parties to give the appellate court jurisdiction to revise or reverse it. Our Code provides that "any party to a judgment or decree *** may appeal," and that "the party appealing is known as the 'appellant,' and the adverse party as the 'respondent.' " Section 536. "Any party" evidently refers to any person who is a party to the action. To take an appeal it is required that "the appellant shall cause a notice to be served on the adverse party, and file the original, with proof of service indorsed thereon, with the clerk." Section 537. Who, then, is "an adverse party," within the meaning of these provisions of the Code, upon whom the notice of appeal must be served? Evidently, every party whose interests in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the appeal. Such has been declared to be the meaning of the words "adverse party," as used in the statutes of other states. Thompson v. Ellsworth, 1 Barb.Ch. 627; Cotes v. Carroll, 28 How.Pr. 436; Hiscock v. Phelps, 2 Lans. 106; Wheeler v. Hartshorn, 40 Wis. 96; Senter v. De Bernal, 38 Cal. 640; Lillienthal v. Caravita, 15 Or. 341, 15 P. 280. The notice must be served on all parties whose interests are adverse to the party appealing. The question, then, is whether Thompson and Troupe, who have not appealed from the judgment, are to be deemed adverse parties, so as to require them to be served with notice of the appeal. They certainly have no interests in the case which are adverse to, or in conflict with, those of the appellant. The judgment is against them and the appellant, as well as the boat, for a specific sum of money. Its modification or reversal would affect them precisely as the appellant, indicating that its and their interests are identical, and not adverse. The party interested in sustaining the judgment or decree is an adverse party to the appellant, and, as such, is entitled to notice of the appeal. Thompson and Troupe are not interested in sustaining, but in defeating, the judgment, and are not parties whose interests are in conflict with or adverse to the party appealing. "Our Code," says Sanderson, J., "allows any and every party who is aggrieved to appeal without joining any one else, no matter what may be the character of the judgment against him, whether joint or several, and in this respect works a change from the former practice; but he is required to notify all other parties who are interested in opposing the relief which he seeks by his appeal, if they have formally appeared in the action in the court below, or his appeal, as to those not served, will prove ineffectual, and also as to those served, if the relief sought is of such a character that it cannot be granted as to the latter without being granted as to the former also." Senter v. De Bernal, 38 Cal. 642. Thompson and Troupe are not parties "who are interested in opposing the relief which the appellant seeks by his appeal," and therefore it is not required to notify them. When, of parties who are interested in opposing the relief sought by the appeal, some are, and others are not, served, the appeal will prove ineffectual when the relief sought is of such character that it cannot be granted to those served without being granted as to those not served. As Thompson and Troupe were not interested in sustaining the judgment from which the appeal is brought, they are not "an adverse party," within the meaning of the statute, and consequently are not entitled to notice of appeal.

The next objection involves the right of the court to enforce the lien by a proceeding in rem. It is founded upon the assumption that the lien sought to be enforced arose out of a maritime contract, and constituted, therefore, a maritime cause of action. By the ninth section of the judicial act of 1789 the district courts of the United States are invested with the exclusive jurisdiction of all maritime causes of action, saving to suitors in all cases the right of the common-law remedy where the common law is competent to give it. The contention is that the common-law remedy thus saved to suitors does not extend to the enforcement of liens by a proceeding in rem, and consequently that a cause of action arising out of a maritime contract belongs exclusively to the admiralty jurisdiction. The action was brought under section 3690, to enforce a lien on the boat Victorian for materials alleged to have been furnished and used by the contractor in the construction of such boat. The findings show that the boat was launched before it was completed, and some of such materials were furnished and used after it was launched, but before it was completed. When the action was commenced, the boat had not been enrolled or licensed, though application had been made to the proper authorities to have it enrolled and licensed under the name "Victorian." The lien given under our subdivision 2 of section 3690 is almost identical with that given under section 14 of the Massachusetts statute, and under either statute such lien may be enforced by a proceeding in rem. In Atlantic Works v. The Glide, (Mass.) 33 N.E. 163 (recently decided,) the jurisdiction of the courts of a state to enforce liens by a proceeding in rem for labor and materials furnished in repairing domestic vessels was thoroughly examined and upheld. As the court was divided, the case is especially valuable in presenting the authorities, and the reasons for and against the exercise of such jurisdiction by state courts. But we are not concerned with the validity of the jurisdiction where it is exercised to enforce a lien for labor or materials furnished in repairing domestic vessels. As Field, J., said: "We do not find it necessary to determine whether, under the existing decisions of the supreme court of the United States, and the existing admiralty rules, this court has jurisdiction to enforce a lien created by the statutes of the state for materials used or labor performed in repairing a domestic vessel." McDonald v. The Nimbus, 137 Mass. 363. It may be conceded that the weight of judicial authority is opposed to the exercise of such jurisdiction by the state courts in cases of that kind, without affecting the validity of its exercise in cases of this kind, unless the provisions in relation to them, contained in the statute, are so inseparably connected that one cannot stand without the other. But this is not so. The lien given for materials furnished or labor done in repairing vessels is distinct and separate from those given for the building or construction of vessels, and a denial of the power of the court to enforce a lien in the first case in no way involves or affects the power of the court to enforce the lien in the latter. In Sheppard v. Steele, 43 N.Y. 56, the lien, and its enforcement in the state courts, for materials furnished in the construction of a boat, was upheld, notwithstanding previously in The Josephine, 39 N.Y. 19, the enforcement of a lien for supplies furnished a domestic vessel at her home port was denied, and the same statute in that regard declared to be void, upon the ground that these different matters, although contained in the same statute, were not so blended, or one so dependent on the other, as to render the whole statute inoperative or void. Nor will we assume that a statute is void in part in order to defeat a right involved under another part. We regard the act and its amendment as one statute. We test the right claimed under it by viewing the statute as a whole. We construe them together as one statute. That a statute which gives a lien upon vessels and furnishes a means of enforcing it, in cases of contracts not maritime, is valid, is not now open to question; and that...